From the Death and Taxes section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).
A Last Will and Testament, or simply “Will”, is a written expression of your desires for our your property will be distributed once you have died. The law requires that a Will be signed in the presence of witnesses, and the interpretation of certain words and phrases used in Wills has ben established in the case law over the decades. Thus, the proper preparation and signing of a Will is carefully set forth by the law; the more complicated the Will, the more complicated the legal rules that apply.
A Will can also indicate your preference for custodian, guardian or trustee for your minor children and/or for their possessions and inheritance in the case of your death. However, a court will make an independent ruling on who to appoint as custodian. The judge will make this decision based on his or her perception of what is in the best interests of your children. But knowing your preference will be important to the judge making the custodial decision.
If you don’t have a Will when you die, your property could go to an estranged spouse, an undeserving child, or a disliked relative. Also, failing to have a proper Will can cause much of your estate’s assets to be paid to creditors or the state and federal governments. You probably wouldn’t deliberately name Uncle Sam as your heir, so don’t unconsciously allow that to happen by not making a proper Will.
A Will is not a power of attorney (Refer to Lesson 10 for an explanation). Any part of a Will or the entire document can be changed by you prior to your death. So don’t make the mistake of thinking that a Personal Representative named in a Will has any legal rights or responsibilities before the maker of the Will dies.
If you read John Grisham’s book, The Testament, you will get a vivid illustration of the rule that anyone can change his Will at anytime prior to death.
The Lesson: Write a Will so your wishes will be followed after your death. If you don’t, you may be rewarding people other than your loved ones. Tell your Personal Representative that you have named him, but don’t burden him with extra instructions that could tie his hands or compromise you Will in court. Instead, have a lawyer prepare your will and incorporate all of your important wishes into it.