A Last Will and Testament is a document that leaves your final instructions to the world about what to do with the property and belongings you have left behind. But there is a good deal more to understand about Wills. For one, a Will only controls assets that do not already have instructions tied to them about what happens after you die. Bank accounts or retirement accounts that are payable on death to a particular beneficiary, for example, are not subject to the Will (unless your Estate is named as the beneficiary, or possibly if the named beneficiary has already died). Furthermore, a Will cannot control assets that were not titled to (owned by) you at death. If you establish a Living Trust and re-title assets in the Trust’s name, for example, the Will cannot control those assets (unless you have Power of Appointment language in your trust- more on this later). Keeping assets outside the Will’s scope can be a good thing, when we intentionally are trying to avoid probate, which is common parlance for the administration of the estate controlled by the Will (the probate estate).

Assets that are owned by you at death and that have no other beneficiary or co-owner with right of survivorship, are subject to the Will, however. These assets can be personal property, of which there are both tangible (furniture, clothing, antiques) and intangible (bank accounts, stocks, cash) varieties, or real property, which means land and the buildings and improvements to the land.

Technically speaking, a gift of personal property is called a bequest. Gifts of real property are called devises. Often, however, the terms are used interchangeably. Specific bequests and devises are those gifts of specific assets to specific beneficiaries. The remainder of the assets of the probate estate is called the residue and it is especially crucial that your intended beneficiaries be named for this residue. Otherwise, any assets not ultimately disposed of by the Will are controlled by the laws of intestacy, which means your heirs-at-law will receive such assets, which may not be your intended result.

If you already have a Will and would like it reviewed or if you are just beginning your own estate planning, call an experienced attorney at Mata & Hill PLC to ensure your goals align with your documents.