Some Necessary Will Provisions

Listed here are some common – but nonetheless vital – provisions that should be incorporated into your will. However, please be aware that they are by no means the only provisions that should be included. Your will should be tailored and constructed to meets the particular needs of your individual financial situation and estate.

Exordium clause - This is the opening phrase of your will stating that it is, in fact, your will. The usual language is typically something to the effect of: "I, {your name}, of {city and state of your residence}, declare this to be my last will, revoking all prior wills and codicils made by me."

This is actually all that the exordium needs to say. It's not necessary to begin with "In the name of God" and end with "Amen," or start off with "Being of sound mind and mindful of the vicissitudes of life," or any other such commonly known phrases. The statement of residence, although not absolutely necessary, is nevertheless a good idea to have because it offers evidence that the stated location is in fact where you declared your domicile to be at the time that you signed the will.

Survival clause - For every bequest that you make under your will, it should be considered whether you want the named beneficiary to receive the bequest only if he or she survives you. If this is the case, then the words "if he (or she) survives me" must be added after each such bequest. If you don't perform this step, the bequest will automatically pass to the beneficiary's probate estate if the beneficiary does not survive you.

Furthermore, you can actually specify (within reason) just how long a beneficiary must live after you in order to be considered as having survived you for purposes of your will. This provision can be very important if a beneficiary dies a few hours or a few days after your own death. In such a circumstance, you might not want the bequest to take effect. For instance, your will can state that "a beneficiary shall not be considered to have survived me or another, for purposes of this will, unless such beneficiary shall have survived me or such other for a period of thirty (30) days." Note that thirty days is arbitrary length of time and is not the required number for any legal purpose. You could just as easily choose ten days or sixty days, but most experts agree that the time period shouldn't be more than six months, as this can create estate settlement delays and uncertainties and, in the case of a surviving spouse, cause a loss of certain estate tax savings.

If the beneficiary doesn't survive you, then the share that he or she would have received will pass to your residuary estate (the amount that's left over after payment of all bequests, expenses, taxes, and claims) and be distributed along with that.

Simultaneous death (or common disaster) clause - Although related to the survivorship clause, the simultaneous death clause is somewhat different. Most states have adopted legislation known as the Uniform Simultaneous Death Act, which provides that if the testator and a beneficiary die under circumstances where it's impossible to determine the order of death, the testator is considered to have survived the beneficiary unless the testators will states otherwise. In the event that the beneficiary is a spouse, the will typically provides that the spouse is 'excepted' (or exempted) from the survivorship clause, and in the event of a simultaneous death, the spouse with the smaller estate will be considered to have survived for the purpose of reducing federal estate taxes.

Tangible personal property - Tangible personal property normally consists of household furnishings, jewelry, clothing, automobiles, and other 'moveable' personal effects, and frequently it's simply taken by the surviving spouse and children without any formalities. Because of the federal income tax laws dealing with the treatment of distributions from an estate, however, this innocent taking of such tangible personal items in some cases can actually be taxable as income to the recipients.

Powers of the executor - Generally, lawyers make much more of executors' powers than is frequently necessary (especially in smaller estates) since an executor has certain inherent powers which are necessary to carry out the duties to settle the estate, whether or not explicitly stated in the will. However, it does no harm to provide the executor with more extensive powers so as to eliminate any question on the part of third parties dealing with the estate; and in larger estates where the extent of the executor's duties is occasionally unknown, greater powers are quite appropriate. Furthermore, there are certain powers that must be specifically stated, including the authority to continue the deceased's business and the power to deal with or sell the deceased's real estate, if necessary. Therefore, if you fall into the category of owning a business or real estate, your will should contain the necessary powers to allow the executor to deal with those items. Additionally, if a trust is created under the will, it's absolutely essential that the trustee's powers also be detailed. They may indeed be similar to the executor's powers, but frequently they're more extensive because such trusts are generally designed to continue for many years. It should also be noted that most states have statutory executor's powers, which may be incorporated into the will simply by referring to the applicable law of the state.

Guardian appointment - If you have minor children, you want to be sure that your will deals with appointment of a guardian for them, as well as a successor guardian if the initially-named guardian can't or doesn't want to fulfill the duties. It must be remembered, however, that 'naming' a guardian in your will is actually a nomination rather than an official appointment (which, of course, must come from the court).

Executor appointment - As with the guardian and other 'appointments' under your will, this is a nomination rather than an official appointment. The official appointment of an executor is made by the court, but it will normally be your nominee if no one has any objections. As in the case of guardians for minor children, you should also nominate a successor executor in the event the first one named cannot serve.

Bond - With only a few exceptions, every fiduciary (a person to whom something is entrusted for the benefit of another; for example, an executor, administrator, trustee, or guardian) must give a bond to secure the faithful performance of his or her duties (although in some states this can be avoided). Simply put, a bond is the person's promise to effect reimbursement if he or she causes a loss to the estate as a result of his or her negligence or wrongdoing in carrying out the required duties. It can be a personal bond 'without sureties' (meaning that it's backed only by the executor's personal assets), or the bond can be with sureties – in other words, with outside guarantees. The sureties can either be personal sureties (for example, friends of the executor who agree to pay if he or she disappears with the estate's assets) or corporate sureties (an insurance company that guarantees payment). This statement of this provision is generally worded, "I name {the proposed executor's name} as executor and direct that (s)he be allowed to serve without bond, or if a bond is required by law, then (s)he should serve without sureties on his bond."

Tax apportionment clause - This very important provision typically states that all inheritance and estate taxes are to be paid from the residue of the estate. The standard purpose of the provision is to assure that specific bequests are left intact on the assumption, for example, that if Mr. Jones leaves $5,000 to each of his three brothers, he wants them to actually receive their full $5,000; and not $5,000 minus taxes, legal and executors' fees. The typical apportionment clause allows them to receive the full amount, and the estate taxes on their shares are paid from the residue.

Avoiding 'extra' guardians - Whenever there are minor children who may stand to inherit from the estate, or if even the possibility exists that an as-yet unborn child could inherit, under certain circumstances many states will require that a guardian ad litem (GAL) be appointed on behalf of the minor child in an effort to protect the child's interests. This will be done even though your spouse is already appointed as guardian under the will, on the basis that since the spouse is also a beneficiary, he or she cannot be a totally disinterested party with regard to the child. Therefore, the court will appoint a GAL (who's usually an attorney known to the judge or to the clerk of court) to review the estate matters on behalf of the child. Despite this fact, it's possible in most states to forego such an appointment, provided you feel comfortable that the persons you've appointed will do a trustworthy job.

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