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What is a “Last Will”?

A Last Will is simply another term used for a person’s will, which directs how their property is to be distributed upon death.  The full legal phrase is “Last will and testament”.  Traditionally, the term “will” referred to distributions of real property, while the term “testament” referred to distributions of personal property. 

However, this distinction is not frequently observed today; a last will is usually understood to include both real and personal property distributions. 

When is a Will Considered to be “Last”?

Also, the term last will refers to the most recent document that contains instructions regarding the party’s property distributions.  This is important, because most will undergo several revisions before they are finalized.  Depending on individual state laws, creating a new will or modifying a will can sometimes cancel an existing will draft.     

Thus, it is important for a testator (the person creating the will) to make note of any changes that are made to existing will documents.  This is especially true if there have been important changes in the life of the testator, such as an addition to the family or the acquisition of new property.

How Do I Decide What to Put in a Will?

Determining what to put in a will is very important.  Failing to put a desired item in a will or putting the wrong item in can have negative effects on your loved ones’ ability to claim the property.  Before you draft your last will, you may wish to consult with an attorney for advice on what to put in a will.  However, these are a few of the items that you should consider putting in a last will so as to avoid the probate process: 

  • Real property and interests in real property (such as a home or a share in a plot of land)
  • Valuable or unique items, such as family heirlooms, antiques, and one-of-a-kind items
  • Personal property that you know for certain should be passed along to a specific relative or friend
  • Distributions of money that will be going to specific individuals

When deciding what to put in a will, you should avoid using language that is vague or too general- it’s usually best to name the items and recipients individually.

What are the Requirements of a Last Will to be Considered Valid?

The laws regulating wills and trusts may vary widely according to each individual state.  However, most state laws require the following in order for a last will to be valid:

  • Testator Qualifications: The person whose property will be distributed must be at least the age of majority, and be of sound mind at the time of executing the will
  • Signature: The testator must sign the will, and include the date of signature
  • Witnesses:  The will must be “attested” or signed by at least two witnesses (the number of witnesses required may vary by state).  Also, the witnesses must be competent and not have any interests in the property distributions
  • Labeling:  The will must clearly state that it is the person’s last will.  Usually the words “Last Will and Testament” or “Last Will” in the heading will suffice.

While a last will needs to be signed and attested, it is usually does not have to be notarized.  Instead, the presence of the witnesses will serve to verify the authenticity of the document.  Also, if there is already an existing will, the new will should state how it is to affect the existing documents.

Finally, the testator needs to appoint an “executor” who will put the will into action upon the testator’s death.  The executor is usually named in the will document itself. 

Do I need a Lawyer for a Last Will?

While it is not specifically required that a lawyer draft a will, it is highly recommended that you consult with a lawyer for issues with a last will.  An experienced attorney can help you draft, modify, and review your last will so that it meets the requirements of state law.  Having an attorney assist you in creating your will is important for protecting your assets from mistakes, errors, and fraud. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-11-2012 03:20 PM PDT

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