What is a Last Will and Testament?

A will is a legal expression of your intent in how you would like your property to be distributed to others after you die. It is a document in which you state who should inherit your property, how taxes and debts are to be paid, and who should be the legal guardian for your minor children should you need one.

Will (n): The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death.

Black’s Law Dictionary (11th ed. 2019).

There are different types of wills. Generally, a will is a written expression of the testator’s intent in how to distribute her property on death, has a testator, names beneficiaries and is witnessed. Once a person dies a probate court will use the will to distribute the deceased’s estate.

Testator: Someone who has made a will; esp., a person who dies leaving a will.

Black’s Law Dictionary (11th ed. 2019).

A last will and testament is the most recent will of a deceased person, which ultimately decides how the testor’s (the person who made the will) property is to be disbursed to his beneficiaries (the persons or entities who will take the testator’s property as directed by the will).

Beneficiary:  Someone designated to receive money or property from a person who has died.

Black’s Law Dictionary (11th ed. 2019).

Probably the most used will by estate planning attorneys is the “pour-over will.” This is “a will that ‘pours over‘ property into a trust when the will maker dies. A pour-over will is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party’s death. Property left through the will must go through probate before it goes into the trust.”

When creating a living trust it is a good idea to make a pour over will at the same time to catch any assets that were left out of the trust and instruct that those assets become part of the trust upon the testator’s death. This ensures that property left in the will is distributed according to the terms of the complimentary living trust.

The most obvious benefit of having a will is that it leaves instructions for the probate court in what is the testator’s intent in how property is to be distributed. Without a will a person’s property will be administered according to the default rules of intestacy. A will makes the process smoother and more clearly honors the specific intent of the testator.

About the author: Matthew W. Camphuis is an attorney licensed by the California State Bar and the Central District Court. He focuses on IRS tax debt controversy, IRS tax audit defense, California State Tax Controversy, chapter 7 bankruptcy, estate planning and wills and trusts. His office is located in Ontario, California and he serves the Inland Empire and High Desert communities in Southern California.