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Why You Need A Will and How To Draft One

You may want to use a will as your primary estate-planning tool or you may need to use one as a backup to any other estate measures you've already established.

First, let's consider why you need a will--whatever your overall estate plan.

  1. You need to take care of your kids. In most states, a will is the only estate-planning tool through which you can name personal and property guardians for your minor children. (You can learn more about this in Family Issues.)

  2. You need to back up your current estate plan. No matter how many different probate avoidance tools you use, you will probably still need at least some basic will. This is why: You may die at a time when you've accrued significant assets but not had the opportunity to put them into your living trust. You may die while waiting for a loved one's will to go through probate--you expect to claim assets from this estate, but they're not technically yours until probate is established. A will in which you leave all your worldly possessions to your spouse, say, or equally divided between your spouse and children, will ensure that these possessions make their way into the hands of your loved ones.

In certain situations, despite the probate morass, a will can also legitimately serve as your primary estate-planning tool. Consider the following:

  • You're not dying any time soon. If you are a young person with a seemingly limitless financial future, a will, for now, should probably serve as your primary estate-planning tool. Living trusts--discussed thoroughly in Trusts--accomplish your estate goals while bypassing probate. Still, they take some money to start up, and if your financial picture is in a state of flux, you may spend a lot of money talking to lawyers who have to rewrite new trust documents every time you accrue a new asset. At this point in your life, it's simpler, and makes better financial sense, to write out a straightforward will, through which you can state something like, "I leave all my real and personal property to my wife, Jane Doe."

  • You can't deal. Sure, you know you should examine trusts and other estate-planning tools, but you just don't have the time or the inclination. That's not a great approach (Trusts can save your heirs a lot of time and a lot of money, bypassing probate.) Still, it is better to die with a will as your sole estate plan than with no estate plan at all. If you die intestate, your government, working under state law, will determine who gets what. That's bad. You know your loved ones' needs far better than any government agency does.

  • Most of your assets won't be subject to probate, anyway. Assets that you hold with another as joint tenants with the right of survivorship won't be subject to the probate process--they will simply pass to the other tenant upon your death. Similarly, life insurance policies won't pass through probate--the benefits will be paid out to your named beneficiaries. Other retirement and estate planning funds, such as Individual Retirement Accounts and retirement plans, also usually bypass probate by requiring that you name a beneficiary in the event of your death.

Drafting Your Will

The average will contains the following clauses and information:

In this section, you identify yourself by name and address and indicate that this is your "last will and testament." You also state that you are of "sound mind." This is an important issue. Aggrieved would-be heirs will often challenge a will in court claiming that the writer--say, an 85-year-old father who recently cut all his children out of his will to leave everything to his new, 24-year-old wife--was not of sound mind when signing the document. This is why all wills require witnesses. Your witnesses surely don't need to be trained psychiatrists, but the courts may call upon them to testify that your looked sane (at least to them) at the time you wrote your will.

Example: The clause itself usually reads something like: "I, John Smith, of 123 Monroe Street, Boulder, Colorado , being of sound and disposing mind and memory, do make, publish, and declare this to be my Last Will and Testament, and I hereby revoke all wills and codicils heretofore made by me."

Personal information
This section states clearly what you mean by phrases like "my wife" and "my children." You want the courts to know that your use of the words "my wife" means your current wife, Catherine, not your ex-wife, Betty. You also want the judge to know whether the phrase "my children" includes your biological kids or your biological kids and stepchildren. Unlike children born in marriage, those born out of wedlock are not automatically assumed to inherit, so make sure you name them if you wish to leave them legacies.

Example: The wording of this clause usually runs something like: "I am married to Adam B. Smith, and all references in this will to my husband are to him. I have three children, whose names and dates of birth are:

    Barbara O'Reily, March 19, 1962
    David Gibbson, October 24, 1975
    James Connely, April 3, 1976

Debts and taxes
As discussed in Death & Taxes, you can mandate that taxes and debts be paid "off the top;" that is, from the entire estate, from the residuary estate or even from an individual request. Your will should contain a paragraph or two outlining how debts and taxes levied against the estate should be paid. It usually reads: "I direct that my debts and expenses shall be paid from [my residuary estate/entire estate/my bequest to . . .]." I direct that my inheritance, estate and succession taxes, including interest and penalties, payable by reason of my death, shall be paid from [my residuary estate/entire estate/my bequest to . . .]."

Your legacy
This is where you list who gets what. You may make specific bequests to whomever you like ("I leave $3,000 to my nephew, Sam Smith. I leave my engagement ring to my granddaughter, Margaret Smith.") You also note to whom--usually a spouse--you are leaving your residuary estate. (As discussed in Death & Taxes, the residuary estate--anything not mentioned as a general bequest--is usually the largest portion of your legacy.)

Care of minor children
If you have minor children, you must appoint a property guardian to manage the goods you leave to them and a personal guardian to raise them. This is discussed thoroughly in Family Issues.

Name an executor
As noted above, an "executor" is the person named in a will who has the responsibility of carrying out the terms of the will. This includes collecting the estate's assets, paying its debts and taxes, and distributing remaining assets in accordance with your wishes.

Your signature and the signature of witnesses
Your signature indicates that you actually wrote the document purported as being your will. The signatures of witnesses, people known by you, are proof of this.

Residuary clause
Every will should have a residuary clause, which is often considered the most important part of the will. The residuary clause provides for the distribution of the remainder of an estate after all the other specific and cash bequests have been made. The residuary bequest can be made to a single beneficiary, either outright or in trust, to two or more beneficiaries in stated proportions, or to a class of beneficiaries such as "children." The residuary clause can function as a blanket contingency clause in case any bequest or contingent bequest is successfully challenged. A bequest that fails, for whatever reason, would turn over to and be added into the residue of the estate. As previously mentioned, this residue also includes any assets not specifically accounted for in the will. Therefore, it is important that you select a residuary beneficiary or beneficiaries.

Do you really need a "residuary clause?"
It is always a good idea to incorporate a residuary clause into the will, even if you have selected contingent beneficiaries for all bequests. There is always the possibility that a contingent beneficiary might die before you. Furthermore, even if all beneficiaries do survive you, there may still be estate assets remaining that you did not dispose of, and therefore, could be subject to intestacy. This means your property would be distributed to your nearest blood heirs in accordance with your state's distribution order. If you didn't have any blood heirs, your property would escheat to the state (that is, go to the state government). A residuary clause is a good way to avoid the undesirable prospect of estate assets falling into state government coffers.

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