last will and testament

For many, when they hear the term “estate plan” they immediately think of a last will and testament. While a last will and testament is not the entire estate plan, it is an important part of it. Let’s take a deeper look at what exactly a last will and testament is. 

Last Will and Testament, Defined

The last will and testament is a legal document that communicates a person’s final wishes as to how they want their assets distributed when they pass away, medical care, and dependents.  In the last will and testament, a person can leave instructions as to whether they want certain people to get certain assets, or whether they just want their assets divided among their heirs. In addition, if there are minor children involved, a last will and testament can include instructions for who would raise their children, as well. 

How Does a Last Will and Testament Work?

A person can write their last will and testament while they are still alive and of sound mind. When they pass away, the instructions will be carried out by a named personal representative (also called an executor or executrix) of the estate. The personal representative is normally named when the will is initially drafted.

Necessary Requirements

Since the last will and testament is vital to distributing the assets of a person’s estate, there are a few requirements that must be met in order for the will to be considered valid. 

First, the person who is writing the will must be of sound mind and mentally capable. For example, someone who has severe dementia would not be able to write a will, or make changes to their existing will. In addition, for a will to be considered valid, not only should the person signing it be of sound mind, but two unrelated and mentally sound witnesses must sign it, as well. If these requirements are not met, then the document will not be considered legally binding. 

What a Will Doesn’t Do

While the last will and testament is the foundation of a solid estate plan, it should not be the only part of an estate plan. This document outlines your wishes, but does not grant any individual the ability to make medical or financial decisions for you if you were to become incapacitated, but not die. It also cannot protect your assets from creditors, or from the costs of long-term care if that becomes necessary. A power of attorney, advanced directive, and trusts are other planning documents that you need considerations to consider include in your estate plan. 

The best way to ensure that your estate plan is complete is to speak with an estate planning attorney. If you have questions about creating a Last Will and Testament—or an estate plan altogether—we encourage you to contact Miller Estate & Elder Law at (256) 251-2137 or or register for one of our free estate planning workshops.


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