Wills & Trusts
Review of A Simple Will
The following is an in depth review of a simple will. We have provided an analysis of the important provisions usually contained in a will, so that you can understand the impetus for each provision. It is expected that you will consult with an attorney before deciding to prepare your own will. The following is intended to be a general discussion , the provisions discussed may not be complete or permitted by your state laws.
You may wish to open the sample Will, and review that document along with the following discussion.
The blanks in the first part specify the name and address of the person making the will.
Article I: This provision specifies that the debts and expenses of the deceased person be paid out of the person's estate. This provision usually gives assurance to the person who is making the will that he/she will not leave behind any debts or expenses which may have to be paid by the person's heirs. Whether the heirs are actually liable for such debts depends upon a number of factors and the type of debt. Note: Although this will does not make a provision for any specific gifts, these can be made also. You might want to review the Specific Gift section for how to make specific bequests and the pitfalls in making such gifts. In such a case, the specific gift(s) section would be Article II and the Residuary Gift section would be Article III. All other provisions thereafter would be numbered accordingly.
Article II: This provision directs several different possible distributions of the estate. The term residuary refers to the remainder of the estate after the bills, debts and funeral expenses are paid. It is very important to pay attention to the provisions giving the property of the deceased and how these are constructed. You can see that there are several contingencies provided for in the will, in the event one or more persons do not survive the deceased.
As you can see in this will the deceased leaves all of his/her property to their spouse. This means that the person trusts his/her spouse to adequately provide for the children or other heirs important to the deceased. You may not wish to do this. One could easily consider the situation where there is a slightly mentally handicapped son who needs a minimal amount of care, but who sometimes cannot earn a living. By leaving everything to the spouse, the deceased is trusting the spouse to provide for the son. In some relationships this may be perfectly workable, but in others, the spouse may not be able to be trusted to stay out of credit card debts or drinking binges or other expenditures. Be sure to give careful consideration to these factors and discuss them with an attorney, if necessary, to determine how best to provide for your situation.
If the spouse does not survive the deceased, then the will provides for an equal division of property among all of the children. Again, be sure this is what you want to happen.
You can see that this will provides for a distribution to the children of a deceased child of the person creating the will. This is optional. You could simply give the entire estate in equal shares to your surviving children. [Note: in some states, you may have to specifically address the situation of not leaving any gift to the surviving children of a deceased child, or the child may inherit anyway. State law is precisely the reason why no matter how simple your estate, it is still best to consult with an attorney to be sure your estate is passing in accordance with your wishes.]
By Right of Representation is the concept we just referred to, where a deceased child's children "stand in the place of the deceased child" and inherit what the deceased child would have inherited.
This will also provide for the situation where a deceased child has no children. Again this is optional and, of course, not necessary if you wish to exclude the deceased child's children from your inheritance.
Finally, the will provides for the situation if there is no spouse and no children and no children's children who will inherit by right of representation. In this case, there are blanks and you can spell out who should inherit your estate. Many people select a specific person who they name in these blanks, or a favorite charity(ies).
After this is the provision simply leaving the estate to the "heirs-at-law" as determined under the laws of your state. As discussed in this Chapter and the Chapter on Trusts, each state specifies the order of succession to the property of a deceased. Many states provide several layers of inheritance to include aunts, uncles, brothers, sisters and others, usually all related by blood. If none of these are alive at the time of death of the deceased, the state usually provides for the distribution of the estate to the coffers of the State Treasury! Thus, be sure to specify who your estate will pass to, in order to avoid this distribution.
Article III: Executor - This provision appoints the person whom you have decided will administer the affairs of your estate. You simply name the person as the Executor. Although this example does not have an alternative Executor, you should give careful consideration to naming an alternate in the Will, in the event the first Executor can not serve for some reason, or if they may not be alive.
The Executor should be someone who is close to you and someone you trust. While it can be a person who will share in your estate, sometimes people who are heirs are not picked to serve as Executors. This is a personal preference. Generally, the issue arises in a vigorous will contest, where one or more persons who are contesting some or all of the provisions of the will might argue to the court that the person you selected cannot be a fair executor, since they stand to gain an inheritance in the will. Courts will consider such arguments and depending upon the facts of each different case, may make orders that either respect your wishes or not. Thus, one consideration might be to name an independent person, if you believe that there will be a contest over your will.
With Bond [or Without Bond] means that the person(s) you appoint to be your Executor either will, or will not, be required to obtain a bond to ensure that they do not convert or steal or otherwise take your assets. Courts generally prefer that all such Executors obtain a bond.
Article IV: Executor powers can be set forth in an all encompassing manner such as that set for in our sample. Or, as we will see in the Trust section, these powers can be spelled out in great detail. Usually, unless there is a specific need to specify the powers individually, a provision similar to that in our sample may suffice. State law is also a consideration, however, and it may define or restrict the powers of Executors more than specified in your will. Again, a simple matter can create serious problems, unless an attorney is consulted and the Executor Powers provision is properly structured.
Article V: The paragraph regarding titles or gender is simply placed in this will to indicate the effect that gender or the titles of the various provisions will have in the will. A will without these is not necessarily defective, but you can see that a clear provision dealing with these issues will, in many cases, remove certain ambiguities which may arise.
An easy example is if you gave a specific gift in equal shares to your two sons and daughters, but you only specified if "he" survives me. The will might be contested if only the daughter survived on the basis of this wording. While this alone may be too technical for an entire legal battle, this ambiguity may be part of a larger will contest and may simply give more "ammunition" to one of the persons in the contest.
The paragraph dealing with the Thirty Day Survival Requirement can be an effective tool for several reasons. First, it might eliminate the situation where each spouse names the other as the sole beneficiary of the estate, but where both die simultaneously, e.g., a car accident. By requiring that the spouse must have survived you for thirty days, you effectively have determined that the spouse, in such a situation, will likely not be a beneficiary. Where this may be important is where the heirs of the spouse might have some claim to the estate. By eliminating the spouse as a beneficiary, you might effectively eliminate the spouse's heirs' claims to the estate.
Second, you can eliminate some confusion created in the "who actually died first" situation, where such a determination may be critical to the inheritance of some person or groups of persons. While it may be a bit complicated, one could imagine the scenario of where one spouse left his estate to his wife, and if she failed to survive him [and under the thirty day requirement, for thirty days] then his children from another marriage inherit his estate. The wife, however, left all of her estate to her husband, but if he did not survive her, her estate was left to her father, who was alive at the time.
These situations happen all the time and are not that uncommon.
Signature Line: Of course, your full name should be spelled out along with the date the will is signed.
Witness Provision: As indicated, State law varies as to whether a Notary Public, or two [or other combination] witnesses, or both, must sign the will, at the same time that the person making the will does so. The addresses are helpful in the event the will is ultimately probated.
It is advisable to review the Witness section to understand the need for Witnesses and/or Notaries Public.