Estate Planning – Last Will and Testament


"The Disclaimer" - The following is a summary/outline and does apply to your particular situation and is not legal advice. It is general information about Estate Planning and the documents and process.

Last Will and Testament

Simply speaking, your Last Will and Testament designates who will get your property after your death.

The Will is only enforceable as to "probate" property. This means that some property (for example- IRAs or 401K'swith a named beneficiary, payable on death (POD) or transfer on death (TOD)  accounts, Joint Tenancy with Right of Survivorship or Tenancy by the Entireties property, and others) will not pass according to your directions in the Will. It is important to determine what property will be probate property and what will pass outside of probate.

Generally, I separate probate property into 3 groups (other lawyers may do it differently):

  1. Specific bequests - Items or amounts of money you want to go to a particular person or group. For example, giving $10,000 to a charity, or your car to a particular child or grandchild.
  2. Personal property - this includes all your tangible property (not money, most investments,  or real estate)
  3. Intangible and real property- bank accounts, investments, real estate and some other property.

You designate your personal property to go to a specific person or group of people (for example, "to my children").

What remains after your specific bequests and personal property is usually referred to as your "residuary estate" - all the rest of your property, and it can go to whoever you like, usually in shares or percentages.

Then you need someone to take care of carrying out your wishes- the Executor/Executrix or Personal Representative (these titles are interchangeable). This person will present the Will to the Probate Court after your death (usually hiring a lawyer to assist), and then distribute your property to the person(s) you designate in the Will.  You need to select a primary and a backup Personal Representative.

What about my minor children?

If you have underage children, then a trust will be set up in the Will. You will name a trustee and a guardian for the children (and backups) to take care of them if both parents are deceased.  The trustee will dole out the money for health, education, maintenance and welfare until designated ages when they will receive a portion of the trust fund (or become their own trustee). The guardian will take care of the children.

Is that it?

No. There's a lot of little decisions to be made - whether real property passes immediately or is subject to management by the personal representative, whether the personal representative/trustee should be compensated, etc.

And some bigger decisions - what happens in second marriage situations, what about disabled children or grandchildren, what about the mortgage on the house, and more depending on your situation.