What is a Last Will and Testament?

A Last Will and Testament is a written document signed by a person at least eighteen (18) years of age and of sound mind wherein directions for the distribution of property are given upon the person’s death. The Last Will and Testament may also appoint guardians of the estates of minors who receive property under the Last Will and Testament.

Should Everyone Have a Last Will and Testament?

What Happens If I Have No Last Will and Testament at My Death?

When Does a Last Will and Testament Become Enforceable?

Does the Law Require the Signature of the Testator to Be Witnessed at the Time of Signing?

What Property Passes by Last Will and Testament?

Is There Any Limitation on the Validity of a Last Will and Testament?

Should everyone have a Last Will and Testament?

Yes. Generally, for young married persons, it serves to dispose of their property and to appoint proper persons as the guardians of minor children and their inherited estates. For the middle-aged, it provides a plan of distribution for their dependents by benefiting those with the greatest need and conserving their property for their spouse and/or children. For the elderly, it directs distributions which benefit spouse, children, grandchildren, and charities.

What happens if I have no Last Will and Testament at my death?

State law determines the appointment of a personal representative and the distribution of property by designating the heirs and their share of the decedent’s estate. The personal representative is the person responsible for filing necessary documents to administer the decedent’s estate, and for making sure all their debts are paid and their assets are distributed to the heirs. The law also determines who receives property from the estate. Generally spouses receive first, then children, and then parents and other relatives. Non-family members would not receive any property without a Last Will and Testament.

Additionally, if property were to go to a minor, or the decedent was the guardian of a minor, state law would determine that resolution. The Orphans Court, or a similar court in the decedent’s jurisdiction, would appoint a Guardian of the child and their property. The Court’s selection is determined at the Court’s discretion since the wishes of the decedent have not been preserved in a Last Will and Testament.

When does a Last Will and Testament become enforceable?

A Last Will and Testament is enforceable upon the death of the testator. It may be revoked at any time prior to death by a Last Will and Testament or Codicil later in date, or by the destruction of the Last Will and Testament itself by the testator. The assets of the testator are not considered the property of the person receiving them until the testator dies. The testator can change their Last Will and Testament as often as they would like if the proper procedures are followed. Any term of the Last Will and Testament will not go into effect until the testator dies, and should not be relied upon prior to the death of the testator. The Last Will and Testament the Register allows to Probate is the final Last Will and Testament signed by the testator—the last one in time.

Does the law require the signature of the Testator to be witnessed at the time of signing?

The law varies from state to state. In Pennsylvania, it is not required, but you should do it anyway. To prove a will is valid when there are no witness signatures, two individuals must appear at the Registrar’s office and swear under oath that the signature on the Last Will and Testament belongs to the decedent. A self-proving Last Will and Testament eliminates the need for the witnesses appearing at the Register’s office. Last Will and Testaments can be made self-proven if proper acknowledgments and affidavits are signed by the testator and witnesses at the time of execution.

What property passes by Last Will and Testament?

Property owned solely in the name of the decedent passes by Last Will and Testament. Property owned by the entireties (spouses), jointly or in trust do not pass by Last Will and Testament. Advice as to what specific property does or does not pass by Last Will and Testament and what property is or is not subject to inheritance taxes should be obtained from your attorney.

Is there any limitation on the validity of a Last Will and Testament?

No. A Last Will and Testament does not ‘expire’ or become invalid through the passage of time. It becomes operative when a person dies. A person may make as many Last Will and Testaments in their lifetime as they choose. When a new Last Will and Testament is made, any old ones should be destroyed. If more than one Last Will and Testament is found, the Probate Court will determine which one to probate. Generally, the last in time is the Last Will and Testament that is probated. However, a successful assertion of fraud, deceit, or undue influence can result in an older Last Will and Testament being probated even if a newer one exists.

If the original Last Will and Testament cannot be found, the assumption according to most states’ laws is that the testator destroyed it, and therefore revoked the Last Will and Testament. If a copy of the original exists, then it can be probated if it is proved that the copy is accurate, that the original had been validly executed, and that the testator did not intentionally destroy their original Last Will and Testament. If an attorney prepared the Last Will and Testament, their testimony could provide much of the necessary proof.