What is a Last Will and Testament?

A last will and testament is a written legal document stating what you want to happen to your estate after your death. Every state has different requirements for a valid will, but a will that has been properly created in one state will generally be recognized in another state.

Contrary to popular belief, a last will and testament is still subject to probate. What is probate, you ask?

Probate is the court process of validating a deceased person’s will, addressing creditors, collecting assets and income, paying estate expenses, and distributing assets to the decedent’s named beneficiaries (or, if none, to their heirs-at-law).

Even the simplest probates can take six months to a year to complete and generally cost at least $4,000.

A last will and testament also names an executor (also called an “administrator” or “personal representative”) who will manage the probate process after your death.

To keep your heirs from having to endure the expensive and time-consuming probate process, you should consider a living trust or other probate-avoidance techniques. We also wrote a useful article explaining the differences between a will and a trust.

Why is it important to have a Will?

You may have told your family or friends how you want your estate to be distributed after your death. Or maybe you have left a letter stating who you want to get your “stuff.”

But unless you have a valid will (or other estate planning document), those wishes will not be legally enforceable. Consider, for example:

  • Do you have minor children? A will allows you to name a guardian for your kids. If you do not name a guardian, a court will decide who will raise your children.

  • Is there someone you want to disinherit? If you do not disinherit them properly through an estate plan, they may inherit under the laws of your state whether or not you want to give them anything.

  • Is it likely that your heirs will fight over your estate? You may want to consider naming a neutral third party to serve as executor of your estate.

These are just a few good reasons to have a will. Although a will is still subject to probate at your death, it is still an important estate planning document everyone should have. Without it, the law decides who will receive your assets — you won’t get a say in the matter!

To avoid that possibility, we encourage you to schedule a free consultation with a qualified, experienced estate planning attorney. You can also learn more about estate planning by downloading our FREE Estate Planning Guide: