by Robin Tidwell

Created on: December 01, 2008   Last Updated: December 27, 2008

A will is a legal document by which a decedent's wishes are carried out; a trust is a similar document, but can be much more detailed and includes such considerations as taxes and residual income, age limitations, and other factors.

By writing and keeping an up-to-date will, one can ensure that his spouse, children, friends, or even pets will receive his estate according to how he chooses to disburse it. Generally, any type of item or property not specifically given to another will be included in the estate as a whole.

A will can and should state who receives what, as explicitly as possible; it should include who will be named as guardian for any minor children, or incapacitated adult children, if both spouses should die at or near the same time. In addition to any assets such as real estate, financial accounts, retirement plans, or investments, one should also detail who receives which personal items.

In many states, any property held jointly by a husband and wife will entail rights of survivorship at the death of either spouse. This means that, regardless of any statement in a will, one's spouse will inherit any real marital property unless, of course, a prenuptial or similar type of agreement has previously been signed by that spouse. Likewise, most states do not allow one to unintentionally disinherit his children unless that, too, is specified in the will as per named individual. Furthermore, many types of assets and accounts can be noted with a right of survivorship, or POD; in cases of joint ownership or partnership, only the portion owned by the decedent can be willed to another.

An executor will be named in the will, often the spouse or a close relative or friend; the individual should be someone who is financially and legally knowledgeable and who can be trusted. The executor is responsible for paying any outstanding debt and for disbursing property, money, and personal items. He may do this in a number of ways, depending upon the assets named in the will and the complexity of consolidating those assets.

Once a will has been drawn up and signed and witnessed, it must be filed with the probate court. This can be done immediately, or be kept with one's attorney until the time of death. A will must be probated, that is, filed with the probate court and determined by the judge to be valid and authentic; a judge will also rule on the executor and his plans to manage the estate. This is often done almost automatically, but can take up to a year or longer.

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