A last will and testament, or will, for short, is a legal document that sets forth how the testator — person who executes the document — wishes his or her assets to be distributed upon his or her death. When preparing a will, there are a number of factors that should be considered. A clear and complete picture of the testator's assets should be the starting place. In addition, a testator must understand the specific laws regarding wills in the jurisdiction where the estate will be probated. Who the testator wishes to appoint as executor and who he or she wishes to nominate as guardian of any minor children are also extremely important considerations when preparing a will.
Before sitting down to prepare a will, a testator should gather all of his or her financial records, as well as obtain current values on accounts and real property held. There are two main reasons why accurate financial information is vital before preparing a will. The first reason is that, if the testator wishes to bequeath specific gifts to beneficiaries, then an accurate description of the gift will avoid confusion and possible litigation upon the testator's death. The second reason is that, if the testator wishes to bequeath specific dollar amounts to beneficiaries, then an accurate value of his or her property is required to determine how much is available to gift. Be aware, however, that the value of assets may appreciate or depreciate over time, which may leave a deficit in available funds or a surplus at the time of the reading of the will when specific amounts are gifted.
Just as important as an accurate understanding of the assets in a testator's estate are the laws of the jurisdiction where the will will be subject to probate. Probate is the legal process that is required in many jurisdictions before the assets of a decedent can be passed on to the beneficiaries. Of specific importance when preparing a will are issues regarding when probate is required and the laws of intestate succession. In some jurisdictions, probate may be avoided when the estate is made up of minimal assets or the bulk of the assets are trust assets. Intestate succession laws dictate how assets will be distributed in the absence of a will or in the event that all assets in an estate are not accounted for in the will.
The executor of a will is the person who will be in charge of overseeing the estate once the testator dies. This should be a serious consideration when preparing a will, as the executor will be in control of the testator's assets upon death. Laws regarding the nomination or appointment of a guardian for minor children in a will vary by jurisdiction; however, in jurisdictions where the nomination is not legally binding, the court will generally place a significant amount of weight on the nomination when making a decision regarding a guardian.
