A last will and testament is a legal document that conveys the final wishes of a decedent for the administration and division of his estate after his passing. Wills are used to avoid state guidelines for intestate succession by providing instructions on how to carry out these wishes to the executor appointed by the decedent within the will.
Historically, the distinction between “will” and “testament” was quite specific: the word “will” was used to when referring to the decedent’s real property, while “testament” conveyed the dispositions of his personal property. In modern times, the distinction is largely ignored, and the term “last will and testament” is merely used as a formal title for the legal document itself, which most now refer to simply as “will.”
A person who executes a will is known as a testator. While a testator can establish a will herself, she can also retain someone else -- such as an attorney or a trusted relative -- to draft a will for her. The testator’s name must appear at the top of the will, indicating it expresses her final wishes, and she must sign the bottom of the will herself to execute it. When the testator passes away, she is then known as the decedent, and her appointed executor files her will with the probate court to initiate probate proceedings.
“Last” Will & Testament
The use of the term “last” is perhaps the most important of the entire phrase. “Last” defines the document as the decedent’s final will and testament, which is the only document acknowledged by the probate courts. The term is most significant when the decedent executed multiple wills prior to passing, which is very common to do as a person’s family, property and subsequent desires change as she grows older. By titling the document as the “last” will and testament, the decedent revokes all previous wills she executed and ensures that this document will serve to convey her last wishes by superseding the existence of anything prior.
Read More: How to Ask if You Are in a Last Will & Testament
Function & Use
Wills are used as part of estate planning, which is the practice of a testator preparing a plan for the management and administration of her estate following death. The main function of a will is to express the testator’s instructions as a legal document, which ensures the testator’s wishes supersede the wishes of anyone or anything else, including applicable governing law.
A will is also extremely versatile, allowing a testator to arrange for the guardianship and care of her minor children, appoint a trustee to manage the entire estate and disperse the estate’s income to her beneficiaries or plan for just about anything her surviving family needs.
Elements of a Last Will & Testament
For a will to be valid, it must exhibit four specific elements. First, the document must state that it is, in fact, the final will and testament of the testator, and revoke any prior wills that they may have previously executed. Second, the will should appoint at least one executor to assume control of the estate upon death and ensure the testator’s wishes are carried out. Third, the will should name and describe the estate’s assets, define the testator’s beneficiaries and state what each is to inherit. Last, and most importantly, the document should bear the signatures of the testator and at least two witnesses who can verify the testator’s identity and her state of mind at the time she signed the will.
- "Wills"; Stanley M. Johanson; 2003
- "Drawing Wills"; Jule E. Stocker, et al.; 2000.