Last will and testament

last will last will Last will and testament 146583191 0 final 300x300For many years, a Last will and Testament ( also known as a Will)  have been the basic device used to disposition of an estate after a person’s death. Despite a trend in many states to use revocable trusts, a Last will remain an essential tool for the estate planner.

What is a Last Will?

A Last will is a legal document which gives an instruction of what should happen to your property after you pass away. In the will you define your assets and how it should be distributed among the beneficiaries. Your last Will and Testament can state how to pay your debt and taxes after your death. In a last will, you can also name guardians for your children. Your Will become effective after you pass away.

Because the last will is in most cases simpler and shorter document than revocable trusts, they are generally less time-consuming to prepare and therefore are less costly for the client. A Last will is generally a better choice than a trust when the estate is small to avoid probate by means of the various small estate procedures available under Probate Code 6600 -6615 and 13000-13660.


It important to say that all properly prepared estate plans contain a will, if only a pourover will that transfers to the trust assets that were not transferred to the trust during the client’s lifetime.

Simply saying a pourover will is a will that takes care of a person’s remaining assets. This will automatically transfer assets which was acquired after creation of trust to a previously established trust when a person dies.

Pour-over Will names the Trustor’s living trust as the beneficiary of the Trustor’s estate.

Any assets held personally in the Trustor’s name which is not in the trust will be transferred to the Trust through probate.

Guardians of Minor Children:  

Last Will and Testament is the usual document used to nominate the Guardian(s) for the Trustor(s)’ minor child(ren), if any, should both parents die before the child(ren) reach the age of 18 (this designation does not trump the parental rights of the other parent if that parent is still alive).

Usually, the Guardians are the same as the Successor Trustees, but this is not necessarily always the case.

A last will remains ambulatory.

A testator retains the power to change or revoke the will during her/his lifetime. Until the testator dies, the devisees have no legally enforceable ( vested rights) with respect to the will. The testator’s right to amend or revoke the will is conditioned on the testator retaining the capacity to do so. Modification or revocation of a will by an incapacitated testator is invalid.

Revocation of Last Will

A subsequent valid Last will can totally completely a prior will if:

  • A clause in the subsequent last will expressly revokes the prior will Probate Code 6120 (a) OR
  • The provisions of the subsequent last will are totally inconsistent with the terms of the prior will

A subsequent Last will that disposes of the testator’s properties in a manner different from that provided in an earlier Last will constitutes a revocation of the prior will.

A last will can also be revoked by being destroyed, torn, burned, canceled, obliterated, with the intent and for the purpose of revoking. Either the testator or another person in the testator’s presence and by the testator’s direction can do that.


Except for dispositive provisions, most Last wills can be drafted without much original writing.

However, some in some situations, the testator needs to be familiar with certain estate planning rules. For example, a married person who has children from a prior marriage usually has different and more complex testamentary needs than the typical married client.

In the heading to a will, a person can use the designation “Last Will and Testament.” This expression dates from a time when “testament” described an instrument that disposed of personal property and “will” described an instrument that disposed of real property. Today, the word “will” is the equivalent of both.

The will should state the testator’s most commonly used name (e.g., William B. Smith) and all other names by which the testator has been known (e.g., Bennett Smith). Because women can retain or reclaim their maiden or former married names, or use hyphenated names, it is particularly important to list all names by which a female testator has been known. Including all names used by the testator may help to differentiate between assets belonging to the testator and those belonging to someone with the same or a similar name (such as a child). It may also assist the executor in locating assets held in a name other than the one the testator is currently using.

Declaring the document to be a will indicates the testator’s testamentary intent.

Older forms of a last will frequently contain declarations of the testator’s mental capacity, that he is “of sound mind and body.” Now this is unnecessary since the courts have long held that the presumption of capacity to make a will exists regardless of such words. The last will recital will not be of any value if the testator is later proved to have been mentally incapacitated on when he executed his last will.

A power of appointment in your last will

A power of appointment, which can be created in a variety of ways, is the power to dispose of the specific property. If the last will creating a power of appointment specifies the manner, time, and condition for the exercise of the power, any exercise not complying with the state in the Probate Code requirements is usually invalid.

The safest way to exercise a power of appointment in your last will is to execute writing that specifically refers to the document creating the power, the type of power being exercised and the date of execution. The document exercising the power should also identify the proposed disposition of your last will and any contingencies affecting the exercise.

A general residuary clause in a last will, does not exercise a power of appointment held by the testator unless specific reference is made to the power or the powerholder’s intent to exercise the power.