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A “will” or “last will and testament” is any written document in which the maker states his or her intention to devise or bequeath his or her real or personal property at death. For a will to be enforceable, it must conform to the specific legal requirements of the state in which it is created.

Important features of a will are as follows:

  • A will must be prepared and executed with the formalities required by the laws of the jurisdiction in which it is created.
  • A will takes effect only on its maker’s death. (A will does not provide planning during the maker’s disability.)
  • A will affects only assets which are owned by the maker alone and which do not pass to others. by operation of law or by contract. (Joint tenancies and beneficiary designations).

A pour over will is typically used when the maker has a revocable living trust. A pour over will provides that at the maker’s death any assets within the maker’s probate estate passes or “pour over” into a revocable living trust.

Guardians for minor children are often nominated in a will.

Specific bequests of personal property can be done in a will. Disinheriting an individual or class of individuals can be in a will.

  • Avoids assets passing under state law (intestacy).
  • Wills permit the nomination of a personal representative (“executor”) and guardians for minor children.
  • Wills are more easily implemented and maintained.
  • Often wills fail to control a great deal of the maker’s property
  • Assets in joint tenancy at the maker’s death do not pass under the will
  • Beneficiary designation items do not pass under the will, and
  • If beneficiary designations are to the will or estate, they are subject to creditor claims.
  • Wills do not provide disability planning for the maker – a will only become effective at death.
  • Wills offer no protection against conservatorship of the maker.
  • Wills are fully public after the death of the maker.
  • Wills do not avoid the probate process.