There's a lot of flexibility as to what you put in a will. However, much of the language used in all wills is standard. There are certain elements that need to be included for it to be valid and legal. These are necessary will provisions:
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Exordium (Beginning) clause. This is the basic, "I, Jane Doe, being of sound mind and body,..." clause at the beginning of each will. It revokes all previously written wills and codicils and usually states your address information or general location.
Survival Clauses. This provides direction in case one of your named beneficiaries dies before you. If you don't specify this, then whatever would have gone to them, will pass to their heirs. You can leave something only to a beneficiary by including the words, "if John Doe survives me..." This way, if John dies before you, the property, whatever it is, is given to someone else.
Simultaneous Death Clause. This section is important when you and one of your beneficiaries die at the same time such as in a car accident. When this happens, it's treated as though the beneficiary died first unless you specify otherwise. If both you and your spouse die at the same time, you can declare that your spouse not to be affected by that clause, and that the spouse with the smaller estate is considered to have survived. This helps reduce federal estate taxes. Some simultaneous death clauses require the surviving beneficiary to survive you a certain amount of time, which covers situations like car accidents where spouses might die of their injuries within a short time of one another.
Tangible Personal Property. Make a separate provision in your will for your personal items, such as clothing or dishes, that you want to leave to someone specifically. Normally these types of items are taken by a surviving spouse or children. However, to make sure that these items are not taxable as income, they should be given to your immediate family in your will.
Executor Appointment. Nominate the person you wish to be the executor of your estate. This nomination is either accepted or rejected by the courts depending on whether anyone objects to your choice. Choose a back up executor in case your first choice is not able to serve. Be sure it's someone you trust to distribute your property according to your wishes.
Powers of the Executor. An executor automatically has certain powers regarding carrying out your will. However, you 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. Additionally, there are some powers which need to be specifically mentioned in the will in order to be wielded by the executor. These include the authority to continue your business or sell your real estate if necessary. You'll also need to establish the powers of a trustee if your will creates a trust. Carefully choosing executors and trustees, and granting them a wide range of powers, helps to ensure that they can deal with whatever issues come up in handling your affairs.
Guardian Appointment. If you have minor children (under 18), you'll need to name a guardian. Choose an alternate in case your first choice is unable to carry out this responsibility.
Bond. In most states, executors, administrators, trustees and guardians must give a bond when appointed. The bond is a promise to reimburse the estate for any losses created as a result of negligence or wrongdoing. A bond "without sureties" is backed by that person's own assets. A bond "with sureties" has outside guarantees such as that from an insurance company or his own friends. Generally, in your will you can waive the requirement for a bond to be posted.
Tax Apportionment Clause. This directs the inheritance and estate taxes to be paid from the remainder of the estate after your property and money are distributed to named beneficiaries. Look at this closely. Without this clause the beneficiaries will likely pay a share of taxes based on the amount they receive from your estate.
Direct your executor to pay taxes from the assets making up the remainder not being distributed to the beneficiaries you've chosen. Otherwise, if you make large, specific gifts to people and are leaving a comparatively low amounts for unnamed beneficiaries, you'll create problems for them (often a spouse or children), leaving all of the tax burden on them with little or nothing in the estate. Make sure you discuss this with your attorney to guarantee that the distribution of your estate is how you want it and no one is unfairly taxed.
Questions for Your Attorney
- What issues and duties will the executor of my will be faced with? What decisions will he or she have to make?
- I want certain assets to be used to pay for my final expenses and to cover estate taxes - can I put specific directions in my will?
- I'm married and have children at home. What provisions do I need in my will in case my spouse and I are involved in a fatal accident?