last will and testament

A last will and testament is the foundation of most estate plans. Many of our clients, when creating a will, wonder just how specific they should be with the provisions. It’s a good question, and one that deserves exploration.

On one hand, if you are not specific enough in your will, you could create confusion that results in litigation over your estate, and possibly in your wishes not being honored. On the other hand, too much detail could result in unintended consequences. For example, leaving specific items of roughly equivalent value to each of your children, rather than equal shares of your estate, could result in inequity if some of those assets increase in value before your death and others decline.

Perhaps a better question than “How much detail do I need to put in my will?” is “What am I trying to achieve with my last will and testament, and how can I make my wishes clear?” An experienced estate planning attorney can help you clarify your goals and use the language best calculated to achieve them.

How to Create a Will that Meets Your Needs

Every person who creates a last will and testament has their own unique goals, but there are certain things that all people want to achieve with their estate plan. You want your assets to go to the people and organizations that you care about. You want people you trust in charge of managing your estate and if necessary, caring for your young children. And you want to avoid needless and costly conflict over your estate.

With those common goals in mind, we can talk about what you need to include when creating a will. The best way to prevent conflict (and probate litigation to resolve it) is to be clear about your intentions. Accordingly, here are some details you should definitely include in your will:

  • Personal identifying information. It may seem obvious, but your last will and testament should clearly identify the testator (person making the will). Your will should include your full legal name, date of birth, and address, along with any other names by which you have been known. In addition, your will should clearly identify your beneficiaries (persons you intend to benefit from the will). Give all the information necessary to make it clear which individuals you are referring to.
  • “Last will and testament.” Again, it may seem obvious, but the document should state your clear intention that it should serve as your last will and testament.
  • Recitation of assets. In order for your will to distribute your assets, it should specify what they are. How much specificity is required depends on how many beneficiaries you have and how important it is that a given beneficiary receive a particular asset. If you are leaving your entire estate to your spouse, you may not need to detail every asset in your will. If you are leaving heirloom jewelry to your granddaughters, you may want to specify who gets the diamond tiara and who gets the sapphire and pearl necklace set. You may want to identify only large assets such as real estate in your will and have smaller items of personal property listed in a separate document attached to your will, as discussed below.
  • Your personal representative (executor). Your will should identify a person to serve as personal representative of your estate after your death. If you do not name an executor to be formally appointed by the court then the court will choose someone, usually a close relative. The person the court appoints might not be the person you would have chosen. You should also name a second person to act as personal representative in case your first choice predeceases you.
  • A guardian for your children. If you have minor children, the name of the person you want appointed as their guardian is a detail you must put in your will. You also need to name someone as the custodian or the conservator of any assets you leave to your children. It can be the same person you name as the guardian, or a different person. As with a personal representative, you should name a successor in case the individuals you chose die before you. Again, if you do not name a guardian, the court will appoint someone, and it may be someone other than who you would want to care for your children.
  • Definitions. If there can be any doubt about the meaning of any of the terms of your will, you may want to include definitions. Remember, when making a valid will, clarity is your friend. Definitions of terms that could be disputed keep everyone “on the same page” and avoid conflict.

You don’t need to worry too much about how much detail to put in your will if your estate planning attorney understands your goals. For instance, if you want to distribute your estate equally to your three children, your attorney will help you clarify what all of your assets are, explain which of them pass through a will and which don’t, and ensure that your overall estate plan achieves the fair treatment you want.

Things to Think About When Creating a Will

It can be very helpful to your personal executor to have a list of your personal property as an addendum to your will, but be sure to keep the list updated to make sure they are accurate. You would need to refer to your personal property memorandum in your will and update it as you acquire new assets or transfer old ones away. You may also want to keep a list of digital assets, including account numbers, user names, and passwords so that your personal representative can access them when the time comes.

Having these inventories of personal property and digital assets will keep you from needing to update your will itself as frequently. That said, you should plan to update (or at least review) your will every few years; you may want to add or change beneficiaries. For the same reason, you should plan to review your estate plan after any major life transition such as a marriage, birth or adoption of a child, or divorce.

Whatever your life circumstances, your estate planning attorney can help you ensure that your will is detailed enough to avoid confusion, and flexible enough to prevent unintended inequity. To learn more, contact Mundahl law at 763-575-7930.

Categories: Estate Planning