What Is a Testamentary Will, Trust vs. Last Will and Testament

Anbarasan Appavu

A testamentary will is a conventional will, also referred to as a last will and testament. It is a legal document used to transfer an estate's assets to other individuals or organizations after the death of the person who creates the will, also known as the testator. In addition to appointing guardians for minor children, naming executors to carry out the will's instructions, and establishing trusts for beneficiaries, testamentary wills are also used to appoint guardians for minor children and to name executors. Legally, anyone over the age of majority and of sound mind can create a will.

• A testamentary will, also known as a traditional last will and testament, is a legal document used to transfer a deceased individual's assets to their beneficiaries.

•To be valid, testamentary wills must contain specific language, identifying the testator and revoking all prior wills, and be signed.

•Although anyone can write a will, it is generally prudent to have a trust and estates attorney draft or at least review it to ensure that it is drafted correctly, precisely, and in accordance with state law.

•If you pass away intestate, that is, without a will, a probate court determines the distribution of your assets in accordance with state intestacy laws.

Wills, along with trusts, are essential estate planning tools and a means of wealth transfer.

What Is a Testamentary Will, Trust vs. Last Will and Testament

How Testamentary Will Works

Testamentary wills must include: a clear indication that the testator is the will's author; a statement by the testator that those who revoke any previous wills or codicils; a statement by the testator demonstrating that they are of sound mind and not under duress to dispose of the property; as well as a signature at the end of the will.

The testator selects an executor to administer the estate and carry out the terms of the will upon their passing. Additionally, the will can stipulate the disposition of particular items, properties, and assets. Beneficiaries are those who receive portions of the estate, including property, assets, and other bequests.

Although anyone can draft a will, it is generally advisable to have a trust and estates attorney do so, or at least review it, to ensure that it is written correctly, precisely, and in accordance with state law. Only certain states recognize holographic wills, which are handwritten and testator-signed documents that are neither witnessed nor notarized.

How to Draft a Last Will and Testament

Typically, the drafting procedure proceeds as follows:

• Determine the attributes to include. List significant assets, then determine which should or must be left by means other than the will. A person can only leave the portion of assets they own jointly with their spouse (or anyone else). Each spouse need a will and should create a separate will.

• Determine the inheritors of property. Select alternate or contingent beneficiaries in the event that the initial beneficiaries do not survive the testator.

• Select an executor to administer the estate. Every will must specify an executor to carry out its provisions. It is best to confirm in advance with the executor that they are willing to serve.

• Choose a guardian for any minor children in the event that the other parent cannot care for them or if there is no other parent.

• Select an adult to manage children's belongings (whatever they own or inherit). Make that individual a property guardian, property custodian, or trustee to give them authority over the child's inheritance.

• Create a will. You can create a will by hiring an attorney or by using one of the numerous private and public online services, the majority of which are free.

• Sign your will in the presence of necessary witnesses. The completed will must be witnessed by at least two individuals. Additionally, the signature must be notarized if a self-proving affidavit and is used to simplify the probate court process.

Safely store the will. Inform the executor of the location of the will and how to access it when the time comes. Only the original, signed will may be submitted to a court of probate. 

The probate court disregards everything written below the signature on a will.

What Happens in the Absence of a Will?

If you die without a will or if your original will cannot be located, you are considered to have died intestate. An estate can also be in intestacy if the existing will is invalid for any reason (for example, it was improperly drafted) and no prior will exists.

Since there is no will dictating the distribution of your assets, the local probate court (or surrogate's court, as it is known in some jurisdictions) must oversee the distribution of your estate. It is governed by the laws or rules of intestacy in the state where you legally resided at the time of your death.

First, the court appoints an estate administrator based on statutory preferences; typically, the deceased's spouse, adult children, and parents take precedence. The administrator is responsible for dividing and delivering the estate's assets to the heirs, who are known as "distributees."

Nonetheless, the administrator has limited discretion and decision-making authority: They must distribute the assets in accordance with the local laws governing intestate succession. The precise terms vary from state to state, particularly in states with community property, but generally follow the same pattern.

Typically, a surviving spouse inherits fifty percent of the estate, while the remaining fifty percent is divided equally among children. Following the deceased are his or her siblings, parents, and other relatives. In general, only legal partners, spouses, and blood relatives may be designated as beneficiaries; the laws of intestacy seldom provide for anyone else.

It is essential to note that dying intestate only applies to portions of the estate that would have been distributed or bequeathed via a will. Assets, accounts, and property owned jointly with the right of survivorship or designated "transfer on death" automatically pass to the surviving co-owner or transferee. Similarly, life insurance policies and retirement accounts, such as IRAs and 401(k)s, bypass probate and go directly to named beneficiaries (in fact, these designations would overrule any bequest in a will, anyway). Also, assets placed in a legal trust are not affected by intestacy, as their distribution is governed by the trust's terms and not a will.

Trust vs. Last Will and Testament

Both wills and trusts are essential estate planning instruments. The only similarity between the two legal documents is the inheritance of assets.

First, a will is only effective after your death. In addition to dictating the disposition of your property, assets, and possessions after your death, a will also addresses other aspects of your estate, your person (funeral and burial), and your heirs. For instance, a will may appoint a guardian for your minor children or specify their educational preferences.

From bequeathing a silver teaspoon to establishing a trust for multiple generations, a will addresses postmortem matters of all sizes. Once it has been filed and approved by the probate court, it is administered by an executor or personal representative (as they are more commonly known).

In contrast, a trust can be created and maintained throughout your lifetime. It is a legal entity that is granted ownership of specific assets, such as stocks, real estate, and insurance policies. When you establish a trust, you name a beneficiary to receive these assets or their proceeds, as well as a distribution schedule (usually, after your death). In addition, a trustee is appointed to administer these actions.

In contrast to a will, which can have authority over anything in your name alone, a trust only governs the property placed into it.

The revocability of a trust can be either revocable or irrevocable. In either case, once the assets are transferred to the trust, they are no longer technically yours, although you may retain some control over them (by dictating the stocks to be purchased for a brokerage account, for example). They are now owned by the trust and are no longer part of your estate. So that they do not need to go through probate to be distributed after your death.

This is the fundamental distinction between these two methods of wealth and property transfer: A will deals with your estate's assets, while a trust is a way to separate assets from your estate.

A trust is also a good way to keep your assets private, as its contents are only known to you, your trustee, and the attorney who drafted its documentation. In contrast, once a will has been submitted for probate, it becomes a public document. It is a matter of public record, so anyone can access it.

FAQs on Last Will and Testament

How a Living Will Differ from a Last Will and Testament?

A living will, also known as an advance directive, takes effect while you are still alive but unable to communicate your desires, typically due to illness or injury. It is a legal document that specifies the type of medical treatment and care you wish to receive or refuse, as well as the life-sustaining measures you desire. A living will may also indicate whether  his/her organs and tissues are to be donated after death.

A last will and testament takes effect upon death. It stipulates what happens to your estate (money, property, possessions, and investments) after death: Which people or organizations receive which bequests. The will clearly specifies the assets, beneficiaries, guardians for the minor children, and the executor who will carry out your wishes.

What is the cost of a last will and testament?

Costs associated with a last will and testament can vary greatly. If you write the document, find witnesses, and have it notarized yourself, it could cost next to nothing.

It is essential that the will be precisely worded and drafted in accordance with your state's laws; therefore, it is not advisable to draft the will yourself. Numerous online legal services can assist you in drafting a will using state-specific standard forms. Some are free (at least technically; there are often hidden fees), but the more reputable ones, such as LegalZoom, whose plans include online attorney consultations, cost less than $100 per document.

The cost of hiring an attorney will likely reflect their hourly rate. Depending on the complexity of your affairs and will, the final cost could range from a few hundred to several thousand dollars. However, many trust and estate attorneys charge a flat fee to draft a will. A simple will drafted by an attorney can cost as little as $300, but a price closer to $1,000 is more typical.

How Can Last Will and Testament Be Voided?

Several methods exist for rescinding a will, also known as revoking it.

The simplest method is to deliberately destroy the document by tearing, burning, defacing, or shredding it. This destruction must be performed by the creator of the will or in their presence for it to be valid. Ensure that you do this to the original document with a "wet signature" as well as any copies, just to be safe. (Even in the digital age, probate courts are typically reluctant to accept copies of wills; however, they may occasionally do so.)

Writing and executing a new will that includes the phrase "hereby revoking all prior wills, testaments, and codicils made by me" is a more efficient method (assuming that a will is still desired). Such revocation clauses are typical in the majority of wills.

Lastly, you can take a middle ground by modifying portions of an existing will. The newly amended document, now known as a "codicil," can alter crucial aspects of an existing will, rendering it null and void in whole or in part. Typically, codicils must also be witnessed and notarized in order to be legally binding.

Bottom Line

A will is a written document that expresses the wishes of a deceased person, including the naming of guardians for minor children and the distribution of tangible and intangible assets to friends, relatives, and charities. A will becomes effective only after the decedent's death and must undergo probate, a legal procedure in which an authorized court administrator examines it.

If you have minor children, you must absolutely name a guardian in a will. As a matter of good estate planning, however, everyone should create a will as soon as possible. Because in the absence of a will, your state's legal statutes dictate what happens to your property.


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