Deconstructing a Simple Estate Plan – Last Will & Testament

By Melissa Uzzell, JD, Vice President, Director of Fiduciary Services

A simple estate plan typically consists of a will, durable or financial power of attorney, health care directives, including a medical power of attorney and living will, plus perhaps a revocable trust.  This four part series will review the structure and purpose of these basic estate planning documents.  

Most estate planning starts with a simple will sometimes referred to as a last will and testament.  A will is a written declaration of how a person wants their property to be distributed after they die.  A will has no legal effect while a person is living but it must be established while a person is alive and cognizant of their surroundings.  The consequences of not creating a will are potentially a lengthy court action in which state laws would determine how property is distributed and who manages the distribution.

Fundamentally, a will is a legal declaration in which a testator designates an executor or personal representative to manage their property/estate until its final distribution, provides direction on how to distribute their property and to whom to distribute it.  The recipients of property under a will are known as beneficiaries, heirs and/or legatees.   

Depending on the maker’s location or jurisdiction, the required content and formalities of a will may vary slightly but usually include the following:

  • The testator clearly identifies themselves as the creator and that a will is being made (Last Will and Testament of ____________________;
  • Testator must be at least 18 years old;
  • The testator clearly revokes all previous wills and codicils;
  • May state that the testator has the capacity to dispose of their property (sound mind and body) and does so freely;
  • Nominates a person or corporate entity to be executor or personal representative;
  • Designates one or more beneficiaries which may be natural persons, a trust or a charitable organization but cannot be a witness to the will;
  • Signed and dated by the testator or signed by someone else in the testator’s name in their presence and at their direction;
  • Witnessed by two disinterested people whose signatures may be notarized.   

The body of a will may contain additional direction as to how property will be specifically distributed or held in trust for the benefit of the beneficiaries.  It may also contain clauses to help the executor or personal representative manage the estate after death.

Although it is not necessary to have an attorney draft and formalize a last will and testament, this is only one part of a comprehensive estate plan and the best practice is to work with a professional.  In the coming issues this year we will review and deconstruct the other core pieces of a simple estate plan.  Stay tuned! 

Questions? Contact Melissa at 563.388.2580.