will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, see inheritance and intestacy.

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.[1] 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.

Alternate Names:

A Last Will and Testament is also known as a/an:

  • Will
  • Last Will
  • Will and Testament

What is a Will?

A Will is a legal document that allows you to control how your estate will be distributed after you pass away. Your estate is your net worth (the sum of your assets minus any liabilities).

A Last Will can also help you to communicate important instructions, like who will become the guardian(s) of your children or pets.

Do I need a Will?

It is recommended that you create a Last Will if:

  • You have specific people in mind who you would like to leave certain gifts to.
  • You think there may be disputes or confusion regarding the distribution of your estate.
  • You have children or pets and want to name a potential guardian for after you pass away.
  • You have no living relatives and do not want your property to go to the state.

If you pass away without a Last Will (meaning you died “intestate”), your assets are distributed to your heirs by a court-appointed administrator in accordance with state law.

Who are the parties in a Last Will?

A testator (or testatrix), executor, and beneficiary are all parties in a Last Will.

Who is a testator?

A testator (or testatrix) is the person who creates a Last Will and whose property is distributed after they pass away.

Who is an executor?

An executor, sometimes called a personal representative, is the person who carries out your wishes according to your Last Will.

Who is a beneficiary?

When you create a Last Will, you designate beneficiaries who will receive assets (such as money, property, or a portion of your estate) when you pass away.

A beneficiary can be a person or an organization (like a charity). In rare cases, a beneficiary can also be a place (like a community garden or a town).

Why should I appoint a guardian in my Last Will?

If you have children or pets, you should name someone who will be responsible for them after you pass away. Otherwise, the courts may appoint a caregiver for you.

A guardian should be:

  • A legal adult (i.e. over the age of majority in the jurisdiction where they live)
  • Competent (i.e. physically and mentally able to care for the children or pets)
  • Willing to act as a guardian for your children or pets
  • Financially capable of supporting your children or pets

It’s also recommended that your children (or pets) have an existing relationship with the guardian you’re considering and are comfortable around them.

Can you include digital assets in your Last Will?

Yes, a digital estate, sometimes referred to as your digital assets, includes things like digital music, e-books, customer reward points, cryptocurrency, etc.

Keep in mind, some companies may have policies preventing the transfer of digital assets after death.

When should you update your Last Will?

You should update your Last Will if:

  • Your family situation changes significantly (like if you get married, divorced, or have a child)
  • Someone named in your Last Will (like your executor) has passed away
  • You move to a new state or country
  • You purchase or sell assets (such as your house or vehicle)
  • You’ve changed your legal name
  • Your opinion on how your estate should be distributed has changed

Do you need a Power of Attorney and a Last Will?

It is a good idea to have a Power of Attorney, sometimes called a POA, and a Last Will.

A Power of Attorney is a legal document that allows you to give someone the authority to make decisions on your behalf while you are still alive whereas a Last Will lets you communicate your wishes after you’ve passed.

What is the difference between a Living Will and a Last Will?

A Living Will, sometimes called a Health Care Directive, is used to disclose your health care wishes (like whether you want to be resuscitated) while you still alive but are unable to speak for yourself. For example, if you are in a coma.

Alternatively, a Last Will is used to distribute your property and convey instructions after you pass away.

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