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What Your Last Will & Testament Will (And Will Not) Do—Part 1

August was “National Make-A-Will Month,” and if you have already prepared your will, congratulations—few Americans have taken this key first step in the estate planning process. Only 33% of Americans have created their will, according to’s 2022 Wills and Estate Planning Study.

While having a will is important—and all adults over age 18 should have this document in place—for most, creating a will is just one small part of an effective estate plan that works to keep your loved ones out of court and out of conflict. In this post, we will look at what having a will in place will—and will not—do for you and your loved ones. If you have yet to create your will, or you haven’t reviewed your existing will recently, contact us to get this vital step in your estate planning started.

What A Will Does

A will is a legal document that outlines your final wishes and how your assets are distributed to your surviving family members. Here are some of the things having a will in place allows you to do.

1. Choose how assets are divided upon your death: A will's primary purpose is to allow you to designate how your assets are divided among your surviving loved ones. If you die without a will, state law governs how your assets are distributed, which may or may not be in line with your wishes.

As we’ll discuss more below, a will allows you to direct the distribution of certain types of assets—but that’s all it does. And you can direct only those assets you solely own. Other types of assets, such as those with a beneficiary designation or those you co-own with others, are not affected by your will.

2. Name an executor: In your will, you name the person or persons you want to serve as your executor, or what we call “personal representative.” Following your death, personal representative is responsible for wrapping up your final affairs. This includes filing your will with the local probate court, locating and managing all of your assets, paying off any debts you have outstanding, filing and paying your final income taxes, and after all that, distributing the remaining assets to your named beneficiaries.

3. Name guardians for your minor children: If you are the parent of minor children, it is possible to name legal guardians for them in your will. However, if you name guardians in your will alone, it could leave your kids vulnerable to being temporarily taken into the care of someone you don’t know or would not choose until a judge sees and accepts your will.

Our firm offers Kids Protection Plans when families have young children. While you should meet with us to put the full Kids Protection Plan in place, protecting your children is such a critical and urgent issue that you can visit our website to get your plan started right now.

Visit our website and click through prompts to the Kids Protection Plan where you can take the first steps to create legal documents naming long-term guardians for your children to ensure your kids will be cared for by the people you want in the way you want should anything happen to you before you get your full estate plan in place. Get started here now:

After you’ve visited our website, schedule a Family Wealth Planning Session with us so we can put the full Kids Protection Plan in place and determine if there is anything else your family might need to ensure the well-being and care of your children.

If you have already named long-term guardians in your will—either prepared on your own or with a lawyer—we can review your existing legal documents to see whether you have made any of the common mistakes that might affect the care of you kids.

4. Serve as a backup for a living trust: Because it can be difficult to transfer the legal title to every single one of your assets into a revocable living trust before your death, most trusts are combined with what’s known as a “pour-over” will. This type of will serves as a backup to a living trust, so all assets not held by the trust upon your death are transferred or “poured” into your trust through the probate process.

A Small—But Important—First Step

Having a will in place gives you a limited amount of power over the distribution of certain assets, but that doesn’t mean you should go without one. Without a will, you would have no say in who inherits your assets when you die. Worse than that, your surviving loved ones will have to clean up the mess you’ve left behind. And they will have to do it while grieving your death. Your will is an important first step in the estate planning process—one that works best when integrated with a variety of other legal documents, such as trusts, powers of attorney, and advance healthcare directives.

Next week, in part two, we’ll detail the things that your will does not do, and then we’ll outline the different estate planning tools that you should have in place to make up for these potential blind spots. If you want to get your estate planning started or you would like us to review your existing estate plan to see if you are missing anything, contact us.

This article is a service of Jennifer Winegardner of Rayboun Winegardner, PLLC. We do not just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love. That's why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session.

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