For hundreds of years, wills have been the basic device used to direct disposition of an estate after a person’s death, and despite a trend in many states to use revocable trusts as will substitutes, wills remain a fundamental tool for the estate planner. Because wills are in most cases simpler and shorter documents than revocable trusts, they are generally less time consuming to prepare and therefore are less costly for the client. A will is ordinarily a better choice than a trust when the estate is small enough to avoid probate administration by means of the various small estate procedures.
It also remains true that all properly prepared estate plans contain a will, if only a pourover will that transfers to the trust assets that were not transferred to the trust during the client’s lifetime. A will may also be used to accomplish things a trust cannot. For example, a will may nominate guardians for minor children, provide funeral or burial instructions, or exercise a power of appointment. A will remains ambulatory; that is, the testator retains the power to alter or revoke the will during his or her lifetime, so until the testator dies, the rights of devisees are inchoate, and devisees have no vested or legally enforceable rights with respect to the will. Of course, the testator’s right to amend or revoke the will is conditioned on the testator retaining the capacity to do so, and modification or revocation of a will by an incapacitated testator is invalid.