Common Clauses Found in Prepared Wills

Other than satisfying the legal requirements, a will doesn’t have to be in any standard form. However, a number of provisions are typically included in wills to facilitate the administration of the deceased estate, avoid ambiguity, and ensure that all property is disposed of in accordance with the testator’s wishes. Here are some of them.

Introductory statement

A will should begin with your name and a statement that the document is your will and that it revokes all prior wills and codicils. This statement shows your “testamentary intent” and makes clear that this will doesn’t just amend a previous will. It completely replaces it.

Dispositive provisions

Here you set out what you want to happen to your property. There are many ways to make these gifts. For example, you can make a gift of a certain amount of money or particular item to a specific person. You can direct that property be sold and the proceeds be divided among beneficiaries. You can make gifts to be shared among classes of people, such as “my children,” “my nieces,” or “my descendants.” You can also make gifts to charities or provide that assets are to be transferred into trusts.

If you leave a gift of a specific item of property, you should think about what you want to do if the item isn’t in your estate when you die. You may want to provide an alternative gift. Similarly, you should consider what you want to do if the recipient of the gift dies before you. You may want to identify an alternate beneficiary.

Residuary clause

This is an essential provision for all wills. In a residuary clause you state what you want to happen to any property you own that was not disposed of by some other will provision. This clause will ensure that all your assets are passed in accordance with your wishes, rather than by the laws of intestacy.

Trusts. Your will can establish one or more testamentary trusts that will come into existence after your death. For example, your will may set up trusts for your spouse, children, grandchildren, or others. You will need to consider how long the trust should last and when and under what circumstances the trust should make distributions to the beneficiaries. It is highly advisable to establish a testamentary trust for any minor children that will inherit from your will. If you do not establish a testamentary trust for minor children then their inheritance will go to the Guardian Fund.

Disinheritance

Your will can contain provisions disinheriting a child or spouse, although it may not be possible to completely disinherit a spouse.

Appointment of fiduciaries

These provisions name the persons you want to serve as the executor of your will, guardian of your minor children, and the trustee of any trusts your will creates. You should also name successors and alternates in case the first named fiduciaries are unable to serve.

Powers and duties of fiduciaries

These provisions spell out the authority of the fiduciary to administer the estate or trust property including the power to operate a business, or to sell or invest estate or trust assets. Otherwise, the fiduciary may need to obtain court approval or consent of beneficiaries. These provisions will also require your executor to pay your taxes and debts before distributing your estate.

Survivorship

This provision spells out for how long a beneficiary must survive you in order to get his or her inheritance. This is important because when a beneficiary dies at the same time or shortly after you, you may prefer that his or her inheritance go to an alternative beneficiary of your choice, instead of to the deceased beneficiary’s heirs.

Expressions of your wishes and explanations of your gifts

You may want to indicate how you would like to see a beneficiary use a gift (e.g., to buy a home or pay off debts), but these expressions are not binding on the beneficiary. You may also want to explain why you have chosen to make or not make certain gifts. Alternatively, you may prefer to put these thoughts into a letter that can be kept private and delivered to your beneficiaries and other appropriate parties.

At Benaters, we understand the importance of having a will. Our attorneys will ensure that the will that is drafted for you contains the most important provisions. It is vital that you have a will in place and we are here to assist you.

It is very important to have a will. please contact us today to discuss your will.