Last Will & Testament
A Last Will & Testament is vital to ensure that the wishes of the deceased are carried out. A will is a legal document used to distribute personal property, real property, money, and particular items to the intended beneficiaries. A will helps you protect items of family or sentimental value from being sold in the estate administration process. It allows you to name an executor who will administer your estate and see that all the provisions and stipulations of your last wishes are carried out in an orderly fashion. Generally, for a will to be valid you must sign it in the presence of two witnesses who can attest to your signature. In Iowa and Illinois a special self proving paragraph is used with witness signatures and notarized
A will or testament is a document by which a person, the maker, a testator, expresses his/her wishes as to how their property is to be distributed at death, and names one or more persons, the fiduciary, the executor to manage the probate estate property until its final distribution. If a person does not make a Last Will his/her property may be disposed of by intestate succession, the estate plan that the Stae legislature wrote for evry person in the State who did not write a Last Will .
Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), the historical records show that the terms have been used interchangeably. Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.
Types of wills generally include:
- nuncupative (non-culpatory) - oral or dictated; often limited to sailors or military personnel, but not allowed in Iowa.
- holographic will - written in the hand of the testator; in Iowa and many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.
- self-proved - in solemn form with affidavits of subscribing witnesses and notorized .
- reciprocal, or mirror, or mutual, or contractual (husband and wife) wills - wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other.
- will in solemn form - signed by testator and witnesses.
Many Last Wills also Contain Testamentary Trusts
Many Wills contain provisions for trusts. Usually, these trusts are intended to make sure that an inheritance is managed for beneficiaries who can't, for some reason, manage it themselves. The trusts may or may not come into existence when the will-maker dies, depending on the circumstances.
Trusts for children, for example, are commonly set up in their parents or grandparents Last wills .For example a parent might use his will to leave all his property to a spouse and name the young children as alternate beneficiaries. The children would inherit only if the spouse didn't survive him. But if the children are all under 18 or disabled, if they inherited, an adult would have to manage the money for them. Creating a trust is a way to take care of that possibility. The parent can set out the terms of the trust, name a trustee (someone who will be in charge of trust assets), and state that if the children are under 18 (or any other age he picks) at his death, the trust should be created. If they're past the age he specified, they would inherit the property outright.
Similarly, a parent might want to leave money to an adult child, but might not trust that child to handle the money wisely. A parent who makes her will when her son is an immature 25 might provide that if he inherits property before he's 35, it should go into a trust. When he turns 35, the trust would end; she just hopes he'll have become more responsible by then.
Another parent, whose child has a serious problem with addiction or mental illness, might provide for a disability or special needs that could last the child's whole life.
Serving as Trustee of a Testamentary Trust
It's hard to generalize about the job of the fiduciary , the trustee, of a testamentary trust, because there are so many different kinds of trusts. But if you're the trustee of a child's trust, you may have years or decades of work ahead of you. You'll need to file income tax returns for the trust each year, invest trust property sensibly (following state law and any instructions in the trust terms themselves), keep careful and complete records of all transactions, and keep the beneficiary informed about your management activities.
The hardest part of serving as trustee, however, may be making spending decisions over the years. When the beneficiary asks you for money, it will be up to you—relying, as always, on the instructions in the trust document and your own good sense—to say yes or no.