Most clients say that all they need is a “simple” will. Beyond the fact that there is no such thing as a “simple” will, I thought a short primer on many of the clauses that should be found in a will is a good idea. There is a great deal of flexibility in drafting a will, and most wills have a number of typical sections, including:
- Exodium clause (Declaration clause). This is the “I, Tom Testator, Anywhere, USA being of sound mind and body…” clause that can be found at the beginning of each will. This sets the stage for a testator creating a will. This clause also will include information about the location of the testator. More than likely, a testator will move after executing a will. The location identified in this clause creates a starting point for someone searching for the testator or inheritance.
- Revocation clause. This clause is usually tied in with the declaration clause and typically includes the language “I revoke all previous wills and codicils that I have previously prepared.” This informs the reader that any prior will or codicil is no longer valid. This is an important clause. If the revocation clause is not included in the will and there is a prior will/codicil that prior will/codicil will be probated with the new will. The court will try to dispose of the estate pursuant to the terms of both wills, and if there is an inconsistency between the two, the terms of the most recent will take precedence. And if the estate is large enough there absolutely will be litigation.
- Family Information. “I have a spouse, Tess Testator and children, Joe Testator and Sally Testator.” This simply provides information on the familial relationships of the testator and will be used as a reference point later in the document.
- Personal Representative. “I name my spouse, Tess Testator, the personal representative of my estate.” This clause will nominate the person who will be in charge of your estate during probate and who will follow the instructions the testator provides in the will. In the past, this person was called the “executor” and, currently, is sometimes referred to as the “fiduciary.” Most married clients will nominate their spouse as the first personal representative. But, make sure that you appoint at least one successor personal representative. There is no requirement for a person to accept the nomination/appointment. Other reasons to nominate back-up personal representatives include: someone could object to the nomination or the nominated person is deceased or incapacitated.
- Guardians. If the testator has any minor children (i.e. under the age of eighteen), someone will need to be selected to watch over the children. Remember you can appoint a different person to be guardian for the person and guardian of the property.
- Bond. In most states, the personal representative is required to provide a bond when appointed. A bond is necessary to reimburse the estate for any losses that may occur because of negligence or wrongdoing. The fee to pay for the bond is usually charged against the estate’s finances. Many people see this as unnecessary, and, barring a court ordering otherwise, a testator can waive the need for a bond to be posted by the personal representative.
Next month, I will delve into the more interesting clauses of a will, those that distribute property and pay the debts and taxes of the estate.