In the last two posts (here and here), I described several introductory clauses that can be found in a typical Last Will and Testament. This will be the last post in this series providing further explanations to some basic clauses found in your Will.
- Personal Representative Powers. Most wills simply state a personal representative will have all the powers necessary and provided by law to managing the estate administration. However, many attorneys explicitly state all the powers available in a will as a precaution. A testator can also limit the personal representative’s powers to only those specifically provided in the will.
- Selling Real Estate. One of the more important powers that a testator can bestow on a personal representative is the power to sell real estate. Many state, like Virginia, provide that real estate controlled by a will “drops like a rock.” This means real estate controlled by the will transfers immediately to the new beneficiaries upon the decedent’s death. The personal representative has only minimal power over this realty and only must ensure its gets to the correct beneficiary. Thus, in Virginia, if there is need for the personal representative to sell any real property, the testator’s will must expressly give the personal representative the power to sell the real property.
- Trust Management. Many wills establish trusts upon the testator’s death. This type of trust is called a testamentary trust. Like a revocable trust, a trust management clause will provide instructions from the testator to the trustee of the testamentary trust. Instructions could include items like how to disburse property, naming beneficiaries of the trusts, length of the trust, etc.
- Signatures. For a will to be valid, it must be executed in the proper fashion. Without a signature, the will has not been executed and is not valid. It must be signed by the testator or at the direction of the testator. (Read about how this was be an issue in Gene Upshaw’s Estate). The signature of the testator is generally on the last page of the will.
- Witnesses. The signing of the will must also be appropriately witnessed by the witnesses and their signatures must be signed on the will. The witnesses should be disinterested witnesses. A disinterested witness is one that will not inherit from the will or would inherit based on the intestate statutes. If an interested witness is a witness to the will that interested witness could be disinherited. Witness signatures are generally found below the signature of the testator.
- Attestation/Self-Proving Affidavit. The self-proving affidavit is a special document that is attached to a will that is signed by the same witnesses to the signing of the will. The self-proving affidavit indicates that all state procedures were followed, that the testator signed a will and that the testator did so willingly. The benefit of a self-proving affidavit is that it eliminates the need for witnesses to appear in a probate proceeding to testify about the validity of a will.
- Codicils. A codicil is a document that amends a will but does not replace the entire will. Amendments made by codicil may add or revoke small pieces of a will. For example, a codicil could change who is the personal representative. A codicil must conform to the same legal requirements as the original will and must be included with the will when the personal representative opens probate.
Hopefully, understanding the basic reasoning behind the clauses will aid you when it comes time to draft your own estate plan.