If you’re an executor, one of your first jobs is to find the will and deposit it with the local probate court. But then what? If you sit down to read it, you may come away baffled by the legal jargon that many wills are full of. But most wills contain a predictable set of clause, and when you know what to look for, you can crack the code with a little help.
It’s common for a will to start out with the name, state of residence, and marital status of the person making the will. Then they list the name of the person’s spouse and of any children. Setting out this information up front makes it clear what is meant by subsequent references in the will to “my children” or “my wife.”
Listing the spouse and children also helps to fulfill one of the requirements of making a valid will—that the person making it knows who his or her close family members are. (Spouses, and especially children, are often called the “natural objects of affection” of a will-maker.) If someone is well aware of these close family members, but doesn’t leave them anything in the will, the omission is presumed to be intentional.
Specific Gifts of Property
A specific gift is a gift of a certain asset to a certain person. Here are a few examples:
“I bequeath all of my cookbooks to Audrey M. Wong, or if she should predecease me, then to Jane C. Wong.”
“I bequeath my 2013 Toyota Prius to Myra A. Rowland.”
Grouping items of property. Most people don’t leave every item they own separately; instead, they group items under such labels as “personal effects” or “household furnishings.” Usually, the term personal effects is interpreted fairly narrowly, to include only items that the will-maker wore or carried or that have an “intimate relation” to that person. (“Personal property,” by contrast, is usually given its standard legal meaning, which is everything except real estate.)
References to a personal property memorandum. In many states, people can refer, in their wills, to a separate document that lists tangible items and who is to inherit them. This saves them the trouble of revising their wills every time they want to add or change an item. A reference to this kind of list will probably look something like this:
“If I leave a writing separate from this will that disposes of some or all of my tangible personal property, whether the writing is executed before or after I execute this will, I direct that the writing be incorporated into this will and followed by my personal representative. “
No specific gifts. Don’t worry if you don’t see any specific gifts—this is not uncommon. Some people choose to leave all of their property to one person, or to several people to share.
Gifts of Money
A gift of money, without a specified source, is usually called a “general” bequest. Here’s an example:
“I leave $10,000.00 (ten thousand dollars) to Stanley L. March, or if he does not survive me, to Samantha M. March.”
Gift of the Entire or the Residuary Estate
After the specific and general gifts (if any), you’ll find a clause leaving everything else. This is either a gift of the entire estate (if no specific gifts were made) or the “residuary estate” (what’s left after the specific gifts are taken out).
Here’s a typical residuary clause:
“I leave the rest and residue of my estate to my wife, Helena Strauss. If she predeceases me, I leave the rest and residue of my estate to my three children, Cerisa J. Strauss, Gabriel L. Strauss, and Phillip P. Strauss, in equal shares.”
And here’s a similar clause, leaving the entire estate:
“I leave my entire estate to my husband, Anthony R. Maggione. If my husband does not survive me by five days, I leave my entire estate to the Tri-State Humane Society.”
Personal Guardians for Children
If the will-maker had minor children (under 18) when the will was written, there will probably be a clause that names a personal guardian for the children. This person would be appointed by the probate court to raise the children if both parents couldn’t.
Trusts for Children
Some wills set up “testamentary trusts”—that is, trusts that come into being only after the person’s death. A trust gives someone (the trustee) authority to manage assets for someone else (the beneficiary).
You’re most likely to run into this kind of trust if the will-maker set it up for his or her children. There may be a separate trust for each child or a family trust for all of them. A clause that creates a “family pot trust” might look like this:
“Any property inherited by my children Brooklyn L. Garcia and Richard M. Garcia under this will shall be held in a trust for them. Imelda R. Hernandez shall serve as trustee of the trust. If Imelda R. Hernandez is unable or unwilling to serve as trustee, Leslie H. Zimmerman shall serve as trustee.”
You’ll also find the details about how the trust is to work. For example, you’ll find terms about what trust money can be spent for and when the trust will end.
UTMA Custodianships for Children
Some parents and grandparents, instead of setting up trusts for children, appoint a “custodian” to manage any property they inherit. This is made possible by a law called the Uniform Transfers to Minors Act (UTMA), which is in force in every state except South Carolina. A clause appointing a UTMA custodian will look like this:
“I leave $5,000 each to my granddaughters Emily Kuroda and Phoebe Kuroda. These funds shall be managed by my daughter Elizabeth Kuroda, as custodian for my granddaughters, under the Washington Uniform Transfers to Minors Act.”
This means that the money will be owned by the granddaughters, but managed for them by their mother. Under state law, each girl’s custodianship will end when she turns 21. In most states, UTMA custodianships end when the child reaches age 21; in some, a custodianship can last until age 25.
If the person who made the will also created a living trust to avoid probate, you may find a “pour-over” clause, which states that all assets passing under the will must go to (be “poured over” to) the trust. The person in charge of the trust (called the successor trustee) will distribute the assets, following the directions in the document that set up the trust.
Here is a sample pour-over clause:
“I give, devise, and bequeath the remainder of my estate, including all real and personal property which I own at my death not otherwise effectively disposed of, to the trustee of the Thomas A. Hughes Revocable Living Trust dated September 12, 20xx. This gift, devise, and bequest shall be added to the trust property and held and distributed in accordance with the terms of the trust.”
Debts and Taxes
Some wills identify a particular source of funds to pay the estate’s debts and taxes. If there’s no such clause, the executor usually uses cash accounts to pay debts.
A simultaneous death clause makes sure that property left to a beneficiary who dies at the same time as the will-maker goes to the alternate beneficiary instead. Simultaneous deaths are very unusual, but many people still want this kind of clause. Generally, the clause says that in this situation, the will-maker should be deemed to have survived the other person. The point is to make sure the property passes under the deceased person’s will, not the deceased beneficiary’s.
No-Contest (‘In Terrorum’) Clause
If the person who made the will was concerned that someone might challenge it, the will may contain a no-contest clause. These clauses are intended to discourage beneficiaries from contesting the will in court. If a beneficiary sues and loses, that person gets nothing. These clauses aren’t valid in a few states.
Here’s a no-contest clause:
“If any beneficiary under this will contests this will or any of its provisions, that beneficiary shall not be entitled to any property under the terms of this will, and any share or interest in my estate given to the contesting beneficiary under this will shall be disposed of as if that contesting beneficiary had not survived me.”
Naming an Executor (Personal Representative)
Every will should name an executor (called a personal representative in some states), who will be responsible for handling the estate. The executor gathers property, pays debts and taxes, and ultimately distributes property to the people who inherit it.
A clause naming an executor will look something like this:
“I nominate my brother Matthew O’Malley to serve as the executor of my estate. If Matthew O’Malley predeceases me or does not for any reason serve as executor, I nominate my sister, Daisy O. Recowski, to serve as the executor of my estate.”
The will may also state, either in this clause or a separate one, that the executor is not required to post a bond with the probate court. A bond is a kind of insurance policy that protects the estate if the executor steals or loses estate assets. If the will says no bond is necessary, the estate will save money because it won’t have to pay for the bond.