The Last Will and Testament
The last will and testament (“will”) is one of the most essential building blocks for any property plan. It should define and explain how you want your property to be taken care of or divided. However, it depends on what kind of plan you will implement. Are you confused between a will- based plan or a trust-based plan?
A Will-Based Estate Plan
The will has all the important data about the beneficiaries of your property. The will also defines when and how the estate will be inherited and names the personal representative too, in some states known as the executor. This person is in charge of reconciling your ultimate legal estate affairs and leads the estate throughout the process of probate.
There are four essential points that the will must possess along with the directions the owner wishes to implement. Moreover, if the owner has minor children, then naming a guardian becomes the fifth essential point.
- You must be at least 18 years old
- You must be of sound mind at the time of signing the will
- The will must be written
- The will must be signed in front of two witnesses and a notary (for the self-proving affidavit)
A Trust-Based Estate Plan
If you are making a revocable living trust, it also covers the same four fundamental provisions. However, here the person who holds the right to complete the final legal affairs is known as the successor trustee and not a personal representative. As long as the trust is fully funded, there may be little to no need for the will, but it is always a good idea to have the last will and testament to be on the safe side for anything that didn’t get properly retitled into the trust.
You need to transfer possession of your property into the name of your trust or name the trust as a beneficiary before you depart, so the successor trustee can legally control the assets.. When all assets are properly designated to the trust, probate can be avoided. If you neglect to move even one asset in the trust, it may become necessary to probate the unfunded asset when you die. This must be completed with the directions of the will. This is a type of legal will is known as ‘pour-over will’.
What is the Outcome without a Last Will Testament? (Intestacy)
The dwelling state during death along with the state where you owned property will effectively offer a will as per the state law of intestacy. This will happen only in cases when people do not make the last will and testament before death. If you own real property in more than one state and do not have a trust or other proper entity, probate will be necessary in all states where you own real property. This is true even if you have a last will and testament.
The rules differ from state to state, plus they may have certain requirements to have different people obtain your assets if properties are owned in more than one state. There is one way to make sure your estate goes to the right beneficiary: make a legal estate plan.
Your will may be a simple pour-over will or a complex one, it must comply with the laws of the state where executed to be valid in the state of the probate court. Investing a little money and time now will save much more money and time for your loved ones. I am here to help give you and your family peace of mind.