After a person passes away, their family needs to distribute their property and assets. This process can be difficult because the family may not know what the person would have wanted. A last will is a legal document that specifies how a person wants their property distributed after their death. A last will should include directions about how to distribute everything you own and assign a beneficiary who will receive the assets. Older adults must have a last will to help protect their interests and allow them to maintain control over their lives as they age.

Why is it important to have a last will?

A last will is an important planning tool and a common starting point for a comprehensive estate plan. Some benefits of having a last will include:

Avoid the state taking control over the distribution of your things

Without a legally valid last will and testament, the state will determine how to distribute your estate after your death. A state’s right to distribute your estate’s assets upon your death is called intestate succession, and each state has unique laws on distribution. Regardless of the state that controls your property distribution, intestate succession disregards your wishes. So, if you don’t have a last will, the people or charities you would like to receive your assets at your death may never see any part of your estate.

Minimize family conflict

A last will is a tool to direct your loved ones on how to handle your final affairs after you die and can come as a relief to family members. Losing a loved one is already an emotional ordeal, but compounding the stress of grief with managing an estate through guesswork can be overwhelming. Confusion among surviving family members can lead to strife and cause rifts in the family. Older adults can protect themselves and their families by creating a will.

Protect your legacy

A last will tells your loved ones how to distribute your property. It can be as detailed as you’d like. Your last will can include property decisions, including your life savings, your family home, the money in your bank account, and anything else you own. You worked your whole life to gain your assets; a last will can ensure these assets go where you wish.

Last will vs. living will

If you choose to work with an attorney to create your estate plan, you will probably hear the names of many documents. Although last will and living will have similar sounding names, they each have different functions. The major differences between a last will and a living will are the authorities they convey, when they become effective, and the purpose of the documents.

Last will

•  A last will grants an executor the authority to carefully carry out the wishes of the testator (the person who created the will) as outlined.
•    A last will becomes effective when the testator dies.
•  The purpose of a last will is to account for and distribute all the property owned by the testator at the time of their death.

Living will

A living will is a legal document used by a person who is either terminally ill, suffering from a sudden disability, is elderly, or is incapacitated. A living will is a tool that an older person can use to express their wishes regarding their health care. Notable differences from a last will that are present in a living will include:

• A living will grants an agent the authority to make health care decisions on behalf of an incapacitated principal, or the person who created the last will. An agent cannot act in a way inconsistent with the terms of the living will.
•  A living will is effective during the lifetime of the principal. The agent may exercise the authority given in the living will if the principal becomes incapable of making their own health care decisions. If the principal regains capacity, the agent’s authority ends.
• The purpose of a living will is to allow a patient to retain patient autonomy.

Important considerations when creating a last will

If you are considering creating a last will — that’s great! There are some things to keep in mind as you begin the process of drafting a last will and completing your estate plan. Give some of the following some thought as you start the process.

Take inventory of your stuff

Your last will should provide guidance about how everything in your estate should be distributed after your death. An estate is the collection of all the property you own at the time of your death. 

Give a lot of thought about what is included in your estate before you draft a will. Examples of property that may be a part of your estate include your house, cars, jewelry, checking and savings accounts, boats, land, electronics, clothes, items with sentimental value, and anything else you own in your name only. Your last will can even give instructions about pet care.

Burial or cremation arrangements

You can include your burial or cremation arrangement preferences in your last will. Many choose to state how they would like to be laid to rest in their last will to avoid confusion among their loved ones.

Name your beneficiaries and your executor

Your beneficiaries are the people or entities that will inherit your property after you die. The executor serves as your representative in probate court. An executor’s job is to ensure that your wishes in the will are carried out. Each of these people or entities should be clearly identified in your last will and testament.

Decide if you want an attorney

Estate planning can get complicated, so you might want an attorney to assist you as you draft your will. Keep in mind that depending on the state you live in, an attorney may not be necessary to draft a last will and testament.  If you have a complex estate or if you have questions along the way, it may be wise to contact an estate planning attorney in your area to help draft your last will and testament.