What is a Will?
A “will” or “last will” or sometimes referred to more formally as a “last will and testament”– is a document, executed by a person with sufficient mental capacity, declaring how that person wishes their property to be distributed upon death. A will may also state the person’s wish for their debts to be paid out of estate funds, or to create a trust to hold assets for other beneficiaries or name preferred guardians for children.
But - and this is the most important part - a Will states the DESIRE or the Intentor the Wishes of the person making it.
A Will in and of itself is only a piece of paper and has no operative effect while the person is alive. Upon death, the Will - the document - is submitted to a court in a legal process called “Probate”.
The Will - the piece of paper - becomes evidence in the probate proceeding. And ultimately it is the judge presiding over the probate proceeding who determines where the deceased person’s property actually goes and it is the Judge who decides how the decedent’s other wishes expressed in the Will are actioned.
Finally, because probate is a public legal proceeding, the contents of a will become public record available to anyone. Will-based estate planning is often contrasted with Trust-based estate planning. Please view our other videos in this blog series to better understand the difference.