what is a last will and testament?
Most of us know what a “last will and testament” is in general terms – we’ve either had to deal with one personally or have seen others do it. In popular culture, movies and television often show a group of people gathered in an attorney’s office for a “reading of the will,” but this is more for dramatic effect (and to push the story forward).
What Does a Last Will and Testament Do?
At its simplest, a last will and testament, or “will” for short, is a testamentary document that directs where and to whom the testator’s (the testator is the person signing the will) possessions go after their death. These possessions make up the testator’s “estate,” upon their death. Because a will is a testamentary document, it actually has no legal significance while the testator is still living (it is a legal document, and very important, however). This is because the will only takes effect after the testator dies. However, when the testator dies, the Will will direct what happens to the testator’s assets, including personal items, money, and real estate.
A Little History
Wills have actually been around for thousands of years, and were used by ancient Greeks and Romans. Traditionally, Greek estates would belong to the family of the deceased; however, as time went on, more states began to allow individual citizens to make specific dispositions using a will. In Rome, early law required that wills be declared in public vive voce, in front of seven witnesses. Later, Roman law was changed in recognition of the fact that entrusting the disposition of an estate to the memory of witnesses was prone to error, and wills were required to be made in writing. Unsurprisingly, Roman law is the basis for many European laws on the administration of estates.
What Does a Last Will and Testament Cover?
In Tennessee, a will is a “backup” or “catchall” estate planning device, as it disposes of assets not disposed of by other means. Here’s what I mean. Generally speaking, assets pass in one of four ways, in order of preference:
Beneficiary designation, commonly seen with insurance policies;
Right of survivorship, like where a married couple owns their residence;
Trusts, where the trust entity directs the disposition of assets independent of the status of the testator; and,
Wills, which direct assets not disposed of via methods 1-3.
So, wills really only dispose of three types of assets: those owned solely by the testator, property owned jointly but without a right of survivorship, and contracts with a blank beneficiary designation, or a designation that says something like “the beneficiary of my estate” instead of naming a specific person.
Now that we know what a will is, there are certain requirements imposed by the law in order to make sure they’re legal. We’ll cover that in a different post.
Remember, if you have any questions, or haven’t started your estate plan yet, book a consultation today!
