Trusts and Estates

Necessary Will Provisions

A valid will can be very simple or very complex, depending on your needs. Here is an overview of provisions included in a typical will.

State laws do not require any specific language to make a will valid. Indeed, you have a lot of flexibility as to what you put in a will. However, most formal wills do contain some standard clauses that take care of typical needs. For example, the following elements are often included in a typical will:

Exordium Clause

This is the basic, "I, Jane Doe, being of sound mind and body,..." clause at the beginning of a will. It’s not necessary verbatim, but a will should state your capacity to make a will, revoke all previous wills, and provide your state of residence.

Survivorship Clauses

Survivorship clauses provide direction in case one of your named beneficiaries dies before you. If you don't account for this possibility, then whatever would have gone to them, could pass to their heirs. When you leave something to a beneficiary, you can include the words, "If John Doe survives me..." This way, if John dies before you, the property will go to someone else.

Some wills use a blanket survivorship requirement for all beneficiaries. For example, a will might say, “A beneficiary must survive me for at least 45 days to receive property under this will.”

Another option is to include a “simultaneous death” clause to specifically describe what should happen to property if you die at the same time as a beneficiary.

Specific, General, and Residual Bequests of Property

You can make specific provisions in your will for any of your property, from real estate to dishes to art collections or individual books. Just name the person and the item you want them to get. You can also give specific items of property to groups of people. Though if you do, it’s better to name each person individually -- “Bob, Stan, and Rich” -- rather than using a group term, like “my brothers.”

Or, you can leave “everything” to one person or a group of people. This is called a general bequest because it does not include any specific items of property.

You can also do a combination of these two strategies. You can leave a few specific things to specific people and then leave “everything else” to another person or group. This “everything else” provision is called the “residuary” clause, and the people who get that property are called the “residuary beneficiaries.”

Most wills name alternates for all named beneficiaries, and some wills include many levels of alternates.

Appointment of the Executor

Use your will to name the person you wish to be the executor of your estate. This nomination is usually accepted by the court, unless someone objects to your choice. You can also name an alternate executor who will serve in case your first choice is not able to. It’s possible to name to executors to serve together, but it’s usually not a very good idea.

Executor’s Powers

An executor automatically has certain powers regarding carrying out your will. However, you can use your will to define fewer or more extensive powers. This is more important for larger estates. Your attorney can help you decide what's appropriate for your situation. You'll also need to establish the powers of a trustee if your will creates a trust. Carefully choosing executors and trustees, granting them a wide range of powers, and naming alternates helps to ensure that they can deal with whatever issues come up in handling your affairs.

Guardians for Young Children and Their Property

If you have minor children, you can use your will to name a personal guardian who will care for them if you (and any other parent) cannot. Choose an alternate in case your first choice is unable to carry out this responsibility.

You can also name a guardian for your young children’s property. This can be the same person as the personal guardian, or you can name different guardians for the two roles.

Additionally, you can set up property management for any property that goes to young people through your will – whether they are your children or not. For example, you can leave property through the Uniform Transfer to Minors Act (UTMA), or you can name trustees to care for the property until the children can manage the property for themselves.

Requiring or Waiving a Bond

Many courts require executors to be bonded. However, it’s common to waive this requirement, and you can do that in your will.

A bond is insurance purchased by the estate that protects against the executor’s mishandling of estate property. Requiring a bond makes sense when you’re not confident about a executor’s ability to handle the estate. It might also make sense for large estates that can easily afford to purchase a bond.

However, for many people with small estates who will have a close relative serve as executor, a bond seems like an unnecessary expense. In these cases, including a waiver of bond in your will makes sense. Though, even if you waive a bond in your will, a court can still require one – for example, if your executor lives out-of-state.

Payments of Debts and Taxes

You can also use your will to direct how any debts, bills, taxes, or other obligations should be paid. For example, do you want them paid out of the “remainder” of your estate after all of the specific gifts are made? Or would you rather set aside specific accounts for this?

It’s best to make a plan one way or another. If you don’t make a plan, your estate’s obligations will be paid according to state law. This could reduce the amount of all gifts made, or it could reduce the amount of just certain gifts. Unless you know that your estate won’t have many obligations, this is a good topic to discuss with an attorney who can lay out your options.

An Attorney Can Help

Most people can make a simple will without an attorney, as long as they have access to good do-it-yourself materials. However, if you have a complicated situation, or if you just would feel more comfortable discussing your individual needs with a professional, then get help from an experienced estate planning attorney.

Questions for Your Attorney

  • Should my spouse and I make a joint will?
  • Do I need to have my will notarized?
  • Can I disinherit my children?

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