Wills: Points to Keep in Mind
• If a party dies without a Will, that person dies intestate. A
party who has a Will dies testate.
• States have default (intestacy) rules for estates of people
to die with no Will.
• Parties to a Will:
– Testator: Person who executes the Will
– Executor: Person who is appointed to administer the state
after the testator dies
– Beneficiary: Any person who is to have any benefit from an
estate under a Will
Legal Document Preparation Class 7
Slide 1
Requirements of A Valid Will
• Writing
– In all but a few exceptions in a few states, Wills cannot be
oral
• Legal Capacity
– The testator must be of sound enough mind to understand
that nature of the Will and his or her assets
• Signature before witnesses
• Ceremony
– The testator must acknowledge to the witnesses that this
is his or her Will
• Self Proving Affidavit not required but very helpful)
Legal Document Preparation Class 7
Slide 2
Storage of Wills
• Most often, the lawyer keeps the original and provides
the clients with copies of the Will.
• The client should be encouraged to place the will in an
area (e.g. a dresser drawer) that a relative can access in
case the client dies or becomes incompetent.
– The relative should be told where to look if something
happens to the testator
• Sometimes, a relative (especially
Executor) is given a copy
the
designated
– Usually in a sealed envelope to be opened after the
testator’s death
Legal Document Preparation Class 7
Slide 3
Distinguish Wills from Related Documents
• A Will is the only mechanism by which a gift can be
effective after the death of the donor.
• Other related documents are effective only as long as
the client is alive. These include:
– Power of Attorney. This gives another person the authority
to act on behalf of the principal regarding financial matters
– Healthcare Proxy. This gives another person the authority
to act on behalf of the principal regarding healthcare
matters
– Living Will. This is a directive which discussed what
Medications or life support treatments the principal wants
or does not want
Legal Document Preparation Class 7
Slide 4
Clauses in a Standard Will 1
• Introduction and Revocation
– This clause states the name and address of the testator
and that all prior Wills are revoked (a Will is inherently
revocable at any time and for any reason).
• Payments of Debts and Expenses
– Since debts have to be paid anyway, many attorneys do
not like this clause as it might serve to make enforceable
debts that would otherwise be unenforceable
• On the other hand, if the testator wants unenforceable
charitable pledges and the like to be paid, this clause could
accomplish that objective/
• Payment and apportionment of estate taxes
Legal Document Preparation Class 7
Slide 5
Clauses in a Standard Will 2
• Specific Gifts
– Keep in mind that if the item is no longer in the estate
when the person dies, it will adeem
• General gifts
– It’s important to draft contingencies in case the beneficiary
is not alive
• There are default lapse and anti-lapse rules that deal with
those contingencies, but they are confusing and may not
always represent the will of the testator.
• Residuary Clause
– This can give all of the estate to one person or divide it in
whatever shares the testator wants.
• Again: Include contingencies!
Legal Document Preparation Class 7
Slide 6
Incorporation By Reference
• It’s important to keep in mind that if a Will references an
outside document, the outside document usually does
NOT become a binding part of the Will
– Because it was not executed with the formalities of a Will
• So, if a client wants to reference a personal note or list or
whatever, either:
– Include the whole note or list in the will; or
– Reference the note or list but realize that it will be a
suggestion only and not binding
Legal Document Preparation Class 7
Slide 7
Clauses in a Standard Will 3
• Appointment of Executor with backups
– You can appoint more than one person
• Appointment of Trustee of any testamentary trusts
– Could be a trust company or bank’s trust department
• Testimonium clause
– A declaration that the testator knows this is his/her Will,
etc.
• A description of the powers of the fiduciaries
• Guardianship appointment, if the testator has minor
children
• Signatures of Testator and Witnesses
Legal Document Preparation Class 7
Slide 8
Other Points Regarding a Will
• A Will should not be altered in any way. If, by mistake, an
original Will is tampered with, an affidavit should be
prepared and executed explaining what happened and
why
– Without this, there may be trouble admitting the Will to
probate after the person dies
• A Will can be revoked by destruction, but this is a BAD
idea, since people might not know it was destroyed and
a photocopy might be admitted to probate. Instead it
should be revoked by subsequent Will
• A “second Will” or any Will that is in addition to a
previous will that is not revoked is valid (along with the
first one) and is called a codicil.
Legal Document Preparation Class 7
Slide 9
Key Testamentary Trusts- the Marital Trust
• To allow assets given to a trust to qualify for the estate
tax marital deduction, the trust must have certain
features:
– The surviving spouse must be entitle to the income
– No other person may be a beneficiary during the spouse’s
lifetime
• Decisions for the client:
– Should the surviving spouse be allowed to withdraw more
than just the income? If so, how much?
• Remember that whatever s/he can withdraw will be
vulnerable to creditors, etc.
Legal Document Preparation Class 7
Slide 10
Key Testamentary Trusts- the Credit Shelter Trust
• This is not part of the surviving spouse’s estate, although
the spouse can have some rights to it, including:
– The right to income from the trust
– The right to withdraw up to 5% of the principal per year or
$5,000, whichever is more
– The right to additional funds, if the trustee agrees to give
them to the surviving spouse
• It’s best to NOT make the surviving spouse the trustee of
this trust unless you make sure that s/he needs to
consent of a third person before withdrawing more than
the “5 or 5” amount each year.
Legal Document Preparation Class 7
Slide 11