Today, let’s take a post to broadly work through the clauses that are in a typical will. Why? To remove some of the mystery and to show you how such a document is effective and even essential.
As a warning, there is no “standard will”. Drafting the best will for one’s situation is quite personal to each individual, and state law differs as well. That being said, ten clauses are presented below as broadly as possible to help you get the general idea of what we are attempting to accomplish in the will.
It is also helpful to remember that pretty much any will is revocable until you pass away.
Oh, and finally, DO NOT COPY ALL THE SAMPLE CLAUSES PRESENTED BELOW TO CREATE A WILL – SUCH A WILL WOULD BE INCOMPLETE AND INEFFECTIVE – THE CLAUSES ARE PROVIDED AS EXAMPLES AND FOR EDUCATIONAL PURPOSES ONLY. Check the site’s disclaimer page as well for further explanation.
Off we go then:
Declaration and Revocation Clauses
Example: “I, Mike Smith, declare this to be my will. I revoke all previous wills and codicils that I have previously prepared.”
These clauses tell the reader that under no uncertainty, the document is intended as your will. The clause revoking previous wills ensures the reader that they have your final wishes in hand.
Example: “I have a spouse, Carol Smith, and three children, Marcia, Jan and Cindy.”
This is a good place to identify who is in your immediate family for reference later in the document.
Payment of Debts and Taxes
Example: “I direct my personal representative to pay all of my debts, taxes, funeral and administrative expenses.”
Your debts and taxes must be paid first before your personal representative can give away your assets.
Example: “I leave my ‘Shepherd’ painting to my friends, John and Sally Tamarac.”
This is where you list specific tangible items you would like to give to a specific person. This set of instructions is optional, as many simply leave all their property to their spouse or descendants.
Example: “I leave all remaining property unaccounted for in this Will to my wife, Carol Smith. If she does not survive me, then I leave all such property in equal shares to my three children, Marcia, Jan and Cindy.”
Anything not specifically listed anywhere else in the will is covered in this clause. It serves as a “catch-all” in case anything is missed due to any purchases or sales you may make after drafting your will.
Example: “I name my wife, Carol Smith, the personal representative of my estate.”
A clause is set where you name the main person who is responsible for following the instructions you give in your will. This person is also commonly referred to as an “executor” or a “fiduciary”. You might also name trustees of any trusts you set up through your will as well.
Example: “If any property in this will becomes payable directly to a minor, all such property shall be given to the property guardian of my minor children as custodian for each minor under the state Uniform Transfer to Minors Act.”
Courts will generally avoid giving property directly to children. The Uniform Transfer to Minors Act enables an adult custodian to hold the funds in a special account on behalf of the child until age 18 or 21, depending on your state’s law.
Example: “If my wife does not survive me and I leave minor children, I nominate my sister ‘Alice B. Davis’ as personal and property guardian of my minor children.”
These clauses, usually in many subparts, explains in detail what your personal representative can and cannot do with your assets during administration of your estate. These cover items such as how the personal representative should invest assets, the power to pay taxes and debts, what happens if husband and wife die simultaneously, etc.
Signatures, Witnesses and Self-Proving Affidavit
The self-proving affidavit is a special statement signed by the witnesses indicating that all state procedures were followed, that you were aware that you signed a will and that you did so willingly. Procedures for signatures, witnessing and self-proving affidavits vary greatly by state – be sure to check what is appropriate for your particular case.
So as you can see, the document covers what you intend for your property and any children, who should do it, how they will do it, and signed in a way state law will accept your directions. A will seems to be not too complicated and pretty thorough, and if drafted carefully, very effective as well.
- Why the Best Wills Are Boring (scottrosenberglaw.com)
- Wills and Estate Planning (njlawsnews.blogspot.com)
- Overview of Drafting a Will in British Columbia (www.suite101.com)