While this may be the last thing that you want to think about, your Last Will and Testament is the cornerstone of your estate plan. Through it, you can exercise your will with regard to your possessions, and, most importantly, who will become guardians of your minor children if both you and your spouse are called home. Through this document, you give a testament to how you have lived your life and how you have been a steward of what you have been given charge over during this life.
Anyone who is of legal age and who has testamentary capacity may execute a Will. Testamentary capacity is a relatively low standard, and the individual executing a Will need only have testamentary capacity at the time of execution. Testamentary capacity exists when the individual executing his Will understands the nature of making a Will, has a general idea of his possessions, and knows who are the members of his immediate family or other “natural objects of his bounty.”
Wills often deal with the individual’s Tangible Personal Property (which will be covered in more detail in a future blogpost), and any specific gifts or bequests the individual wants to set forth in his Will, such as giving $2,000 to that nice young neighbor who mowed your lawn when it just got to be a bit too much for you to handle in later years. The Will also deals with the residue, which are your possessions that do not include tangible personal property or assets that pass by beneficiary designation, like a 401K. Checking and savings accounts, and an individual’s residence are often part of the residue.
Sometimes younger couples say that they don’t need a Will, because they don’t have much in assets. They may be telling you this while rocking their newborn infant. That is one of the most important reasons to draft a Will – to name a guardian of your minor child or children if you and your spouse are suddenly called home. By not exercising your right to name a guardian, you are leaving it up to the Orphans’ Court in Pennsylvania to name who will be guardian. Often, family members may not be the best choice to name as guardian, but they are the natural choice for a Court to turn to in choosing who will serve as guardian.
The Will is also a document that is signed twice at the end. The Will itself is signed, and then there is a Self-Proving page that is also signed. Without the Self-Proving page, the witnesses who signed the Will must come along to the Register of Wills office at the time the Will is taken to the office for probate.
Wills may also contain trusts in them, called testamentary trusts. Rather than a separate trust document, the Will contains the trust provisions that need to be honored in order to effectuate the intent of the person who executed the Will (the Testator).
Circumstances change in our lives as the years pass, and a Will should not be a document that is executed and stored in a safe or drawer for decades without review. It is a good idea to periodically (perhaps every 5 years) review your Will to make sure that it accurately reflects your family situation and your intent. By doing so, the legacy that you leave to your family, friends, and meaningful charities and ministries will accurately reflect your intent.