Understanding Your Last Will and Testament: A Guide to Your Will Options

A Last Will and Testament allows you to decide who will receive your property after your death and who will be responsible for carrying out your wishes. If you have minor children, your Will can also name a guardian and provide instructions for how property left to your children should be managed.

When you create a Will with TotalLegal, you will be asked a series of questions about your family, your property and the people you want to name in your Will. Understanding these choices before you begin can make it easier to decide which options are right for you.

Naming Your Beneficiaries

A beneficiary is a person or organization that receives property under your Will. Your beneficiaries may include your spouse, children, other relatives, friends, charities or other organizations.

Your Will may provide for different types of gifts. You can leave particular property or amounts of money to specific beneficiaries and then decide who will receive the remainder of your estate.

Making Specific Gifts

A specific gift allows you to leave a particular item of property or a specific amount of money to someone you choose. For example, you might leave a particular piece of jewelry to a family member or a specified dollar amount to a friend or charity.

Specific gifts are distributed before the remainder of your estate is distributed.

Deciding Who Receives the Rest of Your Estate

After specific gifts and other obligations of the estate have been handled, the property remaining in your estate is generally referred to as your residuary estate, or residue.

TotalLegal allows you to identify who should receive your residuary estate. Depending on your family circumstances and the choices you make during the interview, your Will may also provide instructions for what happens if a beneficiary does not survive you.

Providing for Minor Children

If you have minor children, your Will can address both who should care for them and how property left to them should be managed. A guardian is responsible for the care of the child, while a Trustee is responsible for managing property held in trust for the child. The same person may be named to serve in both roles, or different people may be chosen.

Choosing a Guardian for Minor Children

Your Will can nominate the person you would like to serve as guardian of your minor children if a guardian becomes necessary after your death.

Naming a guardian allows you to make your preference known rather than leaving that important decision entirely to others. For more information, see Named as Guardian in a Will.

The court ultimately determines who will serve as guardian based on applicable law and the circumstances at that time.

Trusts for Minor Children

If property will pass to your minor children, your Will can provide for that property to be held in trust rather than distributed directly to them.

A trust created by your Will is called a testamentary trust. It does not require you to create or fund a separate trust during your lifetime. Instead, the trust is contained in your Will and takes effect after your death if the circumstances described in your Will occur.

TotalLegal's Will interview provides different options for controlling when and how children receive inherited property. Depending on the option selected, property may be distributed outright or held and managed by a Trustee until the ages you select. The Trustee manages the trust property and makes distributions according to the instructions contained in your Will. The Trustee may be the same person you nominate as guardian or a different person.

For a detailed explanation of these choices, including how TotalLegal's different trust options work and choosing a Trustee, see Using a Will to Create a Trust.

Choosing Your Personal Representative (Executor)

Your personal representative is the person responsible for administering your estate after your death. This person may also be called an executor in some states.

The personal representative's responsibilities generally include identifying and protecting estate property, handling debts and expenses, completing required probate procedures and distributing property according to your Will.

You should choose someone you trust to handle financial and administrative responsibilities. Your Will can also name an alternate in case your first choice is unable or unwilling to serve.

For more information about the role and responsibilities, see Named as Executor in a Will.

Naming Alternate Fiduciaries

It is helpful to name alternate choices for important roles such as personal representative, Trustee and guardian. An alternate can serve if your first choice dies, becomes unable to serve, declines the appointment or is otherwise unavailable when needed.

Naming alternates when you create your Will can reduce the likelihood that someone will need to be selected later without guidance from you.

Review Your Choices Before Signing

Your completed Will reflects the answers and choices you provide during the TotalLegal interview. Review the completed document carefully to make sure the people, gifts and other provisions accurately reflect your wishes.

Do not sign your Will until you are ready to follow the signing instructions provided with your documents. Will execution requirements vary by state, and properly completing the signing and witnessing process is important to the validity of your Will.

Updating Your Will

Estate planning needs can change over time. Marriage, divorce, the birth or adoption of a child, the death of a beneficiary or fiduciary, a significant change in property or finances, or a move to another state may be reasons to review your Will.

If you already have a Will, whether it was created through TotalLegal or somewhere else, you may decide that it no longer reflects your current wishes. Instead of making handwritten changes to an existing Will, you can create a new Will. A new Will created through TotalLegal includes language revoking all prior Wills and should be properly signed and executed according to the instructions provided.

If you previously purchased a Will from TotalLegal, log in to your TotalLegal account to see whether your Will is still available for revision. If the revision period has ended, you can create a new TotalLegal Will by completing the Will interview again.

If you do not currently have a Will, you can use TotalLegal to create one for your state. Periodically reviewing your estate plan can help ensure that it continues to reflect your family circumstances, property, and wishes.