Will and Trust
Last Will
(Pour-Over Will)
A last will is the most recent expression of your desires for the handling of your financial and personal affairs when you die. A last will revokes any prior wills or codicils you may have made. A codicil is simply an amendment of a will.
A last will ensures that your loved ones receive what you want them to receive, not just what the court thinks they should receive.
FEATURES
A Pour-Over Will take any assets kept outside of a living trust during your lifetime and put them in your trust at death.
If you die without a last will, state law will provide a plan for distributing your assets, which may or may not be desirable, known as the intestate succession law, or intestacy law. (“Intestate” means without a will.) The exact amount or proportion will depend on what state you live in when you die, and whether your state provides for community property or not, but typically:
- If you have a spouse and children, your spouse gets one-half or less of your separate property, and the rest is divided equally among your children
- If you have a surviving spouse and no children, your spouse gets one-half or less of your separate property, and the rest goes to (or is shared with) your parents
- Property going to minor children will be held by a guardian
- Intestacy law does not include step-children, friends or charities
- Intestacy law may or may not provide for a domestic partner, depending on what state you live in (the majority of states do not provide for domestic partners)
- You must have a will to disinherit someone
- Whose plan do you want: your own, or the government’s?
After your last will is fully signed by you and your witnesses, you should store your last will in a safe, secure place. You need to tell your executor where your will is kept and how to get it (where to find the safe deposit box key, what the home safe combination is, etc.). Your will does no good if no one knows where it is located or no one can obtain it.
Yes, you can make changes to your last will when your financial, economic or personal situation changes. However, unlike a living trust, you cannot simply cross out language or write in new language on your last will and initial the changes. To amend a will, you need to make a codicil, or redo your entire will (revoking the prior version), which is signed and attested with the same formalities as your original will.
In fact, your last will is the only place where you can name a guardian for minor children. Choose a guardian who will look after and care for your children as one of their own.
What makes your last will valid and legal are capacity (soundness of mind), formality (a writing), and attestation (the signatures of witnesses). If you sign your last will of your own free will, without dementia, and without the undue influence of others, then you have soundness of mind. If your will is expressed in a clear, legible writing and is understandable, it meets the formality requirements. If your will is signed by two or three witnesses (depending on the state in which you reside) who attest to both your soundness of mind and the genuineness of your signature, you have met the attestation requirement. Keep in mind that your witnesses cannot be beneficiaries named in your last will.
Generally, if your will was valid and legal when you created it in the state which you previously lived in, when you move it will most likely be considered valid and legal as well. However, it will most likely be interpreted consistent with the laws of the state where you die, not the state where the last will was made.
Yes, you may disinherit someone. However, keep in mind that in some states, if you attempt to disinherit your spouse or children, your spouse or children may have a statutory right to a portion of your estate regardless of what your last will says. Generally, people other than a spouse or children can be freely disinherited.
- What If My Beneficiary Dies Before Me
- Can I Be Challenged After I Die
- Should I Include My Burial Plans
Unless some other provision is made, the inheritance for that person will lapse and will become part of your residual estate. Your residual estate is everything leftover after payment of debts and specific gifts (or bequests) and is distributed to your residual beneficiaries. Another reason for having a living trust is that you can easily provide for contingencies, such as what happens if a beneficiary dies before you do. If the deceased beneficiary is your child, most often that child’s share of your estate would go to his or her children (your grandchildren), but you will need to expressly provide for this somewhere in your last will or living trust.
Yes, but such challenges tend to be rare. If you have disinherited a spouse or child where state law provides for a statutory share, they can challenge the will in favor of the statutory share. Anyone else who wants to challenge your last will would need to show that you were not of sound mind when signing it, that your signature was forged, or that there was some other fraud or undue influence which made the will invalid, and these are generally difficult to prove.
It is possible that your will won’t surface until several weeks after your death so it may be wise to let others know of your burial wishes instead of just stating them in your will. If you have prepaid for a burial plot, headstone or funeral, let your immediate family know where they can find the paperwork.