Is a Last Will and Testament the only document you'll need?

The Last Will and Testament is the formal title given to the legal document commonly called a Will.

It accomplishes the following:

  1. Revoke Prior Wills.  The maker of the Will, sometimes called the testator, declares the document to be his or her last Will and Testament.  In doing so they revoke any prior Wills.

    It’s important for anyone who has a prior Will to make certain that they are expressly revoking it.  Multiple documents can cause confusion and lead to fights among relatives.

    If the testator intends to make only minor changes to a prior Will they should do so with a document called a codicil.
  1. Name Guardians for Minor Children.  One of the most important purposes for having a Will is to name guardians for minor children.  In the event of your death someone will be required to take over your parental responsibilities.

    Consequently, parents need to take great care in choosing a guardian.  Failure to author a Will could result in a court appointing someone as guardian of your children who you might not trust to be in that position.
  1. Name a Personal Representative. A Will names a Personal Representative, sometimes called an Executor. The Personal Representative is the individual charged with carrying out the testator’s instructions.

    The law recognizes the Personal Representative as a fiduciary.  They must exercise sound and prudent business judgment in carrying out their responsibilities under the Will.  In large estates, the Personal Representative may be required to post a bond to insure fulfillment of their duties.

    Personal Representatives may be paid for the work that they do. Usually, adult children serving as Personal Representatives of modest estates do not charge the estate for their services.

    Choosing a Personal Representative is a lot like choosing a Trustee for your Living Trust.  To learn more about choosing a Trustee, click here.
  1. Distribution of Your Estate. A last Will and testament provides instructions for the distribution of your estate.  Typically, there are two types of distributions.  The first is Specific Distributions.  The second is Residuary Dispositions.

    With a Specific Distribution a testator identifies a particular piece of property to pass to a particular person. Often, certain kinds of property, which may or may not have much monetary value, can have great sentimental value.

    In the Residuary Dispositions, the testator typically divides all the rest of his or her estate among certain individuals on a percentage basis.  Most parents will divide their estate equally among all of their children to “share and share alike.” 

    But sometimes it’s appropriate to provide for unequal distributions:  Parents often recognize that some children have greater needs than others. Sometimes, adult children have proven themselves unreliable and unsuitable for the receipt of a large amount of money. And sometimes the distribution can come with strings attached.  These stipulations can include beginning treatment for alcohol or drug abuse.

A Last Will And Testament, By Itself, Is Usually Not Enough.

It’s important to remember that a Will does not change the title to your property. A Will is an instruction to your Personal Representative and to the Probate Court of your wishes.  Consequently, an individual whose estate plan consists of only a Will must admit that Will to a probate court.

For many people it’s important to avoid probate because of monetary or privacy concerns, and to minimize the burden placed on their loved ones after their death.

For all but the smallest estates, it’s usually a good idea to create a Living Trust. With a Living Trust, you transfer the title of your assets into the name of the trust.  This is a process called “Funding Your Trust.”

But, Even With A Living Trust, You Still Need A Last Will And Testament.

When planning with the Living Trust one still needs a Will.  We call a Will that accompanies a Living Trust a “Pour Over Will”.  The Pour Over Will revokes prior Wills, names guardians for minor children, and leaves all of the testator’s property to the Living Trust. This Will, in effect, “pours” the property into the trust. 

This is an important standby device in the event that the Living Trust was not properly funded or that some stray piece of property was inadvertently left out of the trust.

If you live in Michigan and need experienced estate planning help, contact Michael Einheuser for a free consultation. Michael helps families in Bingham FarmsTroyFarmington HillsRochester HillsSouthfieldWest Bloomfield TownshipBloomfield Township, and the surrounding Michigan areas.

Schedule your Free Consultation today: (248) 398-4665.

An Ethical Will bequests more that just property. To read about Ethical Wills, click here.

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