Last Will & Testament / Pour-Over Last Will & Testament / Testamentary Trust


                General Definitions About Wills

In MONEY MAGAZINE (Jan. 1973), attorney Leo Kornfeld of New York pointed out:  "Lawyers make their money handling estates, not planning them.  Fees often bear no relationship to the amount of time spent by the lawyer ... This is the real racket in probate ... to exact an enormous fee from a dead man's estate."  Mr. Kornfeld further revealed that most of the work is done by the lawyer's secretary, para-legals and clerks at probate: "Very little of the lawyer's own time is involved ... seldom spending ... more than 15 to 20 hours of his own time handling a $100,000 estate.  Legal fees for ... simple probate work have averaged out to over $1,000 per hour ..."

Wills are legal documents which set out your instructions for the transferring of your estate (your property, money and possessions) following your death. When a person dies he or she will either be testate or intestate. A person who is testate is one who has made a Will; a person who is intestate has not made a Will.

Following your death your Will must be "proved" by the Probate Court. This is the authority by which persons appointed in your Will (Your Executors) will act. If you have not made a Will then your next of kin must apply to the Probate Court for them to transfer your estate in accordance with very strict rules which were made more than one hundred years ago. These rules do not always reflect your actual wishes, and this is one of the main reasons why a Will should be made.

Other reasons for making a Will include:

  • substantial tax advantages
  • the ability to chose those who are to administer your estate; and
  • to demonstrate to your beneficiaries that you intended them to inherit from you.


Have you waited too many years to update your will or trust? How do you know if you have waited too long to update your will or your trust? These are the changes that should make you think about updating your will or trust:

Family Changes:

1. A death of a spouse, child or other beneficiary of your will/trust; or

2. A birth in the family; or

3. A divorce/separation (or a close possibility of one) in the family; or

4. A marriage in the family; or

5. A child has reached the age majority (18); or

6. Adoption of a child or grandchild.

Financial Changes:

1. A substantial increase in the size of your estate (i.e. an inheritance); or

2. A substantial decrease in the size of you estate; or

3. Gifts of over $10,000 annual exclusion to any person; or

4. Law suits and/or Judgments against you; or

5. Depletion of a specific gift you had previously left in your will/trust; or

6. A change in financial responsibility of a child or grandchild; or

7. Acquisition/disposition of a business partnership or corporation.

Health Changes:

1. A serious illness or deterioration of health of either spouse; or

2. A serious illness of a child or grandchild who is a beneficiary of your will/trust; or

3. Disability of a child or beneficiary.

Other Changes:

1. Death of an executor or trustee; or

2. A change in your relationship with your executor or trustee; or

3. If you have not reviewed your will or trust since 1986 for changes in the tax rules.

4. An expiration of your Power of Attorney documents (pre-1992 documents generally expired in 7 years from signing).

 What Needs To Be Done After A Death

  1. Find out whether the deceased had any specific wishes about the disposal of his or her body, including the possible donation of body organs for medical purposes. Check among personal effects for a letter of last instructions or a will. If none can be found, check with the decedent's lawyer or financial advisor, para-legal service, etc. who drew up the will or trust.

  2. Engage a funeral home to take care of the body or notify the memorial society if the deceased belonged to one. Before authorizing a particular mortician to take custody of the body, CHECK AROUND. If possible, send a level-headed, experienced relative or friend to examine coffins and discuss prices. Give this person a general guideline such as "something nice, but not too expensive." That person can compare prices, find out what package prices include, eliminate what you don't want or need and report back. If the deceased belonged to a memorial society, notify the society and they will put the deceased's wishes into action.

  3. Ask for at least 10 copies of the death certificate (the funeral director, attending physician, or lawyer can get them for you). They will be needed to file insurance and social security claims, probate the will and so forth. Check them for accuracy as soon as you receive them.

  4. Obtain a burial plot, unless the deceased already had one.

  5. Inform relatives and friends of the date, time, and place of the funeral or memorial service.

  6. Send obituary announcements to local newspapers (the funeral director may do this).

  7. Notify the deceased's employer. Talk to the employee benefits office where the deceased was employed. Find out when the last paycheck is due, if there is any company life insurance, pension benefits, money in deferred compensation or profit sharing or accident insurance.

  8. Locate the will. Talk to a lawyer about getting through probate, if necessary. The lawyer can also help the executor transfer the deceased's property, file estate taxes, and perhaps file the final income tax form (with the help of an accountant).

  9. Find important papers and documents. Search closets, desk drawers, and safe deposit boxes for such things as insurance policies, business agreements, loans made to others, membership cards, income tax forms, bank books, military records and so forth. Don't throw away anything that looks official or that you don't understand.

  10. Notify the life insurance agent(s) and file a claim.

  11. Notify the Social Security office.

  12. Notify the Veterans Administration if the deceased was a veteran with an honorable discharge.

  13. Notify labor unions, fraternal organizations, and other organizations that may have a death benefit associated with them. For example, if there were occupational factors associated with the death, there may be workers' compensation benefits.

  14. Accumulate debts for payment. Check to be sure none are covered by credit life insurance which will pay them off in full.

  15. If you are a surviving joint owner, have jointly owned property transferred into your name alone.

  16. Cancel any credit cards in the deceased's name only.

  17. Wait a few months before you buy expensive markers or memorials.

Decision-Making Guidelines For Survivors After Death

A wise guideline for survivors, especially for widowed spouses, is to make no major decisions, financial and otherwise, for at least 6 months, and preferably for a year, after the death. Make no investments of any sort until your mind is working clearly and you have had ample time to assess your situation. Take your time and get the best advice you can before you take a single step.

Delay decisions about moving, especially to an entirely new location. Don't lend money to anyone. Never pay an unfamiliar debt or sign any document. Put life insurance proceeds in a secure, interest bearing account with a reliable financial institution and wait before making any decisions. Consult experienced, reliable friends, relatives, and financial advisors. As time passes, things will gradually take shape. Only then will you be ready to make changes about your living and financial arrangements.

Sources of Help For Survivors

Help for survivors is available from financial advisors, both your own and those of the deceased person. These include lawyers, bankers, insurance agents, investments advisors, tax consultants, employers and financial planners. Non-financial help for survivors is available from clergy, friends, relatives, and professional counselors.

If you need help but can't afford to pay for it, check with social service agencies, both public and private. Call Legal Aid if there is such an agency in your community.

How To Make Your Death Easier For Your Survivors

Be sure you have a valid, up-to-date will, trust, power of attorney, medical directive, and letter of last instructions. And be sure your survivors know where these are located.

Fill out a record of important papers and advisors. Keep one copy at home and one in a fire box or safe deposit box.

Teach your partner your major responsibilities, whether these be cooking, keeping the financial books, taking the car in for repairs or doing the laundry.

Carefully consider the advantages and disadvantages of planning your own funeral or memorial service. If you are older and fairly certain you will be remaining in your community for the rest of your life, preplanning a funeral or memorial service and buying a burial plot may be wise. On the other hand, if you're young and mobile, preplanning may work against you unless the funeral home, memorial society, or cemetery has arrangements to put into action if you do move from the community. For younger people it may be wiser to put money for your funeral or memorial service into a financial institution where it can build up interest. Your survivors can then use that money to pay the funeral expenses.

Resources For More Information

Directory of Funeral and Memorial Societies, Continental Association of Funeral and

Memorial Societies, 1828 L Street, N.W., Suite 1100, Washington, D.C. 20036. Send a self-addressed, stamped envelope for the directory or for information on how to start a memorial society.

Available from the Cooperative Extension Service office in your county:


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C. Francis Baldwin
Updated Wednesday, May 26, 2004