What Is a Last Will and Testament?

A last will and testament is a legal document that communicates a person's final wishes pertaining to assets and dependents. A person's last will and testament outlines what to do with possessions, whether the deceased will leave them to another person, a group or donate them to charity, and what happens to other things that they are responsible for, such as custody of dependents and management of accounts and financial interests. Some states do allow for non-standard or unusual wills, such as a holographic will, while others do not.

Key Takeaways

  • If parents with children die without a last will and testament, the courts will appoint a guardian for their minors.
  • If you die intestate, your estate is settled by the courts, including the distribution of all assets.
  • Writing a will and testament gives you some control over what happens to your assets after your death.
  • Life insurance policies with named beneficiaries do not pass through probate court.

How a Last Will And Testament Works

A person writes a will while still alive and its instructions are only carried out once the individual dies. A will names a still-living person as the executor of the estate, and that person is responsible for administering the estate. The probate court usually supervises the executor to ensure that h the wishes specified in the will are carried out.

A will and last testament forms the foundation of an estate plan and is the key instrument used to ensure that the estate is settled in the manner desired by the deceased. While there can be more to an estate plan than just a will, it is the presiding document the probate court uses to guide the process of settling an estate.

Any assets not already designated by a beneficiary, such as a life insurance policy or qualified retirement plan, are not included as probate assets and pass directly to the beneficiaries.

Specifically, a will and last testament instructs the court in the disposition of all assets, including who is to receive them and in what amount. It establishes guardian arrangements for surviving dependents and accounts for any special circumstances, which may include the care of a special-needs child or an aging parent.

Addenda to the will, such as power of attorney or a medical directive, can direct the court on how to handle matters if a person becomes physically or mentally incapacitated.

Consequences of No Will and Testament

When a person dies without a valid will it is said that they have died intestate, which means the state becomes the executor of the estate. In settling the estate, the state decides how to distribute the property and who receives payment first, without any consideration for a family’s circumstances.

Any blood relative can stake a claim to the estate. The court can even establish guardianship arrangements based on its determination as to the best interests of the children. If a court determines a will is improperly drafted, it deems it invalid. The settlement of the estate is then subject to the state's intestate law.