Making a Will
DATE OF
PUBLICATION: DECEMBER 2004 -
W M 1243
A will is actually
one of the most important documents a person ever signs. It enables a person to
distribute his property after his death. It tells his family and friends whom he
wants to administer his property and other assets, to whom he wants to leave
them and the conditions under which the people he names are to receive them. It
also concerns vital family matters, as who will be the guardian of his minor
children.
If a person dies
without a will, his family may be saddled with needless work and trouble, heavy
administrative expenses that a will may prevent, and (very likely) estate tax
liabilities that may eat up much of the money that would otherwise be available
for his family's support.
You are said to die
testate, if you have left a valid will, and intestate if you have not. A
testator is a man who leaves a will; a testatrix is a woman who leaves a will.
All your assets, including money owed you at your deathless your debts and
expenses--constitute your estate. If you die intestate, your assets must be
distributed according to the intestate distribution laws of the state where you
live; and these laws may in no way conform to your wishes. For example, under
the laws of one state your wife would get only one third of your assets and your
infant child two thirds. Another states laws would divide your property equally
between your wife (who might have nothing to live on) and your parents (who
might have ample means). The solution is to make a will. To be absolutely
certain that it is made correctly, if your estate has special situations
involved, see your attorney. As a rule, if you do not make a will, most of your
estate will generally go to your children. Keep in mind that you can also change
your will or write a new one. The latest date obsoletes the earlier ones.
Bequests or legacies
are specific items given to someone in your will. A specific legacy would be a
tape recorder. A general legacy would be $1,000. Your residual estate is what is
left over after the legacies are listed. This residue is divided among your
relatives and/or other individuals you name. If a named beneficiary dies before
you do, the legacy to them has lapsed.
Then there are eleemosynary, or charitable, bequests. These are legacies left to
charitable, educational, or religious organizations. It is best to consult an
attorney if you wish to leave part of your estate to a church, charity, or
college.
The presumption of
survivorship clause, noted elsewhere in this report, protects you in case both
you and your spouse die at the same time. Otherwise the court may treat the
matter as intestacy.
You can also leave your estate in trust. There are several types. Those set up
in a will are testamentary trusts. But, while you are still alive, a living
trust (inter vivos trust) can be set up. There are also life insurance trusts,
accumulation trusts, and charitable trusts. You would need an attorney to set up
a trust. vf
We have friends
all over North America and in overseas nations. From time to time, I am asked
how to make a will. Since I am not an attorney, I cannot tell you how you should
do it. But I can tell you how I would do it, as well as provide some general
information on the subject.
First, I could go to an attorney and have him draw up the will. Or I could write
it myself. Certain items need to be included; but, of these, the most important
would be my signature, the date, and the signatures of witnesses. Notarization
with witnesses is extremely helpful if I prepare my will unaided by a lawyer. It
is best that the witnesses should not include relatives or anyone to which you
wish to leave anything.
Leaving certain items
blank, the bold print below might be my sample will.
LAST WILL AND TESTAMENT
_____________________________
(Name of Testator)
KNOW ALL MEN BY THESE PRESENTS that I,
___________________________, of_______________ _____________________________,
being of sound and disposing mind and memory, do hereby revoke any and all
former Wills and Codicils to Wills made by me, and not acting under duress or
undue influence of any person whomsoever, do make, publish, and declare this to
be my Last Will and Testament, as follows, to wit:
FIRST: I direct the prompt payment of my just debts, if any, and my funeral and
testamentary expenses.
I would next need to jot down what I owned that was of any value, and who I
wanted the various items to go to after my demise. For example, if I wanted it
all to go to just one individual, I would next write this:
SECOND: I give, devise, and bequeath all of my estate--real, personal or mixed,
of whatsoever kind and nature and wheresoever the same may be situated--to my
beloved ________________________, ____________________________________.
THIRD: In the event that my beloved ____________, ____________________ does not
survive me for a period of thirty (30) days after my death, then I declare the
said Article Second to be null and void and I give, devise, and bequeath my said
estate to be distributed as follows:
Perhaps, in addition to the above, I might want all my household furnishings to
be distributed among my children. Then I would add this:
A. All of my household furnishings and personal effects shall be distributed by
and between my surviving children or their guardians, if any be minors, as they
shall select. Any items not so selected, I direct my Executor, hereinafter, to
sell and reduce to cash within forty-five days after my death. The proceeds are
to be added to the residue of my estate.
But, perhaps I would also like to have portions of it distributed to others, not
of my immediate family. Then something like this might be written:
FOURTH: All of the rest, residue and remainder of my estate, I direct my
Executor to liquidate and reduce to cash and to distribute in equal shares by
and between those of my children who survive my death, and:
_________________________________, located at __________________________________
_________________________________, located at __________________________________
_________________________________, located at __________________________________
_________________________________, located at __________________________________
_________________________________, located at __________________________________
_________________________________, located at __________________________________
In the event I leave no surviving children, I direct the remainder of my estate
be distributed as follows:
(i) ____% to _____________________, located at
_____________________________________
(ii) ____% to _____________________, located at
_____________________________________
(iii) ____% to ____________________, located at
_____________________________________
(iv) ____% to _____________________, located at
_____________________________________
(v) ____% to _____________________, located at
_____________________________________
(vi) ____% to _____________________, located at
_____________________________________
(vii) ____% to ____________________, located at
_____________________________________
But I may prefer to distribute my property and furnishings, item by item. In
that case, instead of the above, I might write something like this:
I give my _____________ to _________ ________,
_____________________________________ [address].
I give my _____________ to _________ ________,
_____________________________________ [address].
I give my _____________ to _________ ________,
_____________________________________ [address].
It is important that, in your will, you mention everyone who is a close
relative. If you do not mention them, they can later charge, in court, that you
forgot them at the time you made your will.
In addition, I give $10 each, to each of the following:
__________________, _________________________.
__________________, _________________________.
__________________, _________________________.
The above provides a number of variant ways I can prepare my will, regarding who
I want to will different things to. Keep in mind that real estate includes
land and buildings; personal property does not include land and buildings.
Household furnishings, of course, includes items in the house.
If I have minor children, it is important that I make a will, so they will be
properly cared for. If anything were to happen to me before all of them were
grown, who would be responsible for them? (When Peter Marshall died, his wife
Kathryn discovered he had made no will--so his children belonged to the District
of Columbia, where they lived! Because he left no will, she had ongoing court
activity, at considerable expense, until the last child was grown. So make a
will!)
With all this in mind, if I have minor children, I will want to add the next
paragraphs to my will:
FIFTH: In the event any of my surviving children are minors at the time of my
death, then I nominate and appoint __________, of __________, ___________, as
Guardian of the person and property of such minor child or children.
In the event__________is unable or unwilling to act as Guardian, then I nominate
and appoint _____________, of__________, ___________, as Successor Guardian of
the person and property of such minor child or children.
In the event ___________ is unable or unwilling to act as Successor Guardian,
then I nominate and appoint _________ of __________, _________, as Successor
Guardian of the person and property of such minor child or children.
In the event that ___________ is unable or unwilling to serve as Successor
Guardian, then I direct the pastor of the __________ ___________ Church, in
_____________ or his successor in office, to nominate and appoint a suitable
Seventh-day Adventist couple who are faithful to, and are guided by, the
historic beliefs and standards of Seventh-day Adventism, who understand the
importance of Christian education to act as Successor Guardians of the persons
and property of such minor child or children.
Before the will is complete, there still remains the matter of appointing an
executor, a friend or relative who will take charge of making sure the will is
carried out. Notice that it is necessary that I make provision for my legal
debts to be paid out of my estate.
SIXTH: In the event of a common disaster, causing the death of both myself and
my _________, and under such circumstances as to make the order of death
doubtful, it shall be conclusively presumed that I survived my ________ death.
SEVENTH: I nominate and appoint my ___________, ___________, as Executor of this
my Last Will and Testament, and direct that he / she not be required to furnish
bond or security.
In the event that my __________ is unable or unwilling to serve as my Executor,
I nominate and appoint ___________, ___________, as Executor of this my Last
Will and Testament, and direct that he / she not be required to furnish bond or
security.
EIGHTH: I authorize and empower my said Executor to sell and dispose of all or
any part of my estate--real, personal or mixed--of which I shall die seized or
possessed, to which I am entitled at the time of my death, with or without order
of the Court, at public or private sale, for such prices, at such times and on
such terms and conditions as he / she shall deem meet and/or proper, and to
make, execute, acknowledge, and deliver all proper writings, deeds of conveyance
and transfer; therefore, to settle and compound any and all claims, either in
favor of or against my estate, upon such terms and conditions as my Executor may
see fit; to give full receipts and discharges in the premises. I further
authorize and empower my Executor to mortgage or lease any property which may
constitute a part of my estate, without notice and with or without order of
Court, at such times and upon such terms and conditions as said Executor, in his
discretion, may deem desirable, and to give, execute, acknowledge, and deliver
all proper writings, notes, mortgages, leases, assignments, or other documents
necessary to such mortgages or leasing.
At this point, the will may be complete. If so, I need only add the signatures
and dates. This is important; for it makes the will valid. At the time I sign
the will, it is vital that I do it in the presence of two witnesses. This
attests to the fact that it is really my will. I signed it knowingly, and was in
my right mind when I did it, and not under duress. Notarization at the time is
very helpful, but not crucial. At the same time it is well that, sideways, I
sign and date each page of the will as well. (I should also make sure that each
page is numbered at the top: Page 1 of 4, etc.) If it is to be notarized, be
sure and leave enough room for the notary's seal and written notations.
I, the undersigned testator, being of sound mind and after thoughtful
deliberation, free from coercion, and in the presence of these witnesses, do
hereby sign this, my last will and testament.
Name ______________________________________
Residing at _________________________________
Date __________________
WE, the undersigned attesting witnesses, hereby certify that the foregoing
instrument was on the day of the date thereof signed, sealed, published, and
declared by the said _____________, Testator for his / her Last Will and
Testament, in the presence of us, who in his / her presence and in the presence
of each other have, at his / her request, hereunto subscribed our names as
witness of the execution hereof this _____ day of ________, 2___; and we hereby
certify that at the time of the execution hereof we believed the said Testator
to be of sound and disposing mind and memory and not under duress or constraint
of any kind; and that each of us then attested the Will, at the Testators
request, in the presence of the Testator and each other.
Name of Witness: _________________________________________________
Residing at _________________________________________________
Date
_______________________
Name of Witness: _________________________________________________
Residing at _________________________________________________
Date
_______________________
Subscribed and sworn to before me
this ________ day of ____________, 2______.
_______________________________________
Notary Public
IN WITNESS WHEREOF, I have hereunto set my hand and seal [signature] to this, my
Last Will and Testament, consisting of four (4) typewritten pages, on the margin
of each of which I have affixed my signature for better identification on this
_____ day of ______________, 2______.
___________________________________ (SEAL)
The basic items needed in my will are these:
1 - The first sentence or opening statement identifies me by name, gives my
residence, and states that I am knowingly making my will.
2 - I must make it clear that I am revoking any previous wills or codicils I may
have made. (A codicil is a later signed paper, adding to a previously made
will.)
3 - I direct that, at that time, the prompt payment of my burial expenses,
debts, and taxes be paid.
4 - I must provide for the distribution of my estate (that is, everything I
own).
5 - If I am leaving any of my estate in trust, I must specify the trustees.
6 - If I have minor children, I must specify who, in case my spouse is not
living at my death, is to be the guardian of their persons until they reach
majority and who is to be the guardian of their property (if that is to be a
different person).
7 - It is important that I designate an executor. He or she will have the job of
carrying out my wishes.
8 - I must sign and date my will. Witnesses must sign and say they saw me sign
the document I acknowledge as my will, and that they have signed as witnesses in
my presence and in the presence of each other. A notary public is not necessary,
but extremely helpful.
If my will includes all of the above, it will be upheld in most probate courts
in America--unless doubts can be cast upon it, on the ground that I lacked mental
competence or was subject to undue influence when I signed. But such an
allegation requires evidence of my incompetence at that time.
I, personally, have very few possessions. Including a checking account, it would
all amount to less than $5,000. But if I had a large number of assets, then I
might want to have an attorney prepare my will. In that case, I would need to
provide him with the following information:
1 - A complete list of all my assets, including bank accounts, stocks, bonds,
business ownership and money owed to me, as well as my more valuable personal
effects.
2 - An itemization of all my real estate, together with its value and location,
including property I own jointly with anyone (a spouse or others).
3 - A list of all my obligations, including mortgages on my house or business,
leases, or debts.
4 - Any inheritances I expect to receive before my death.
5 - A statement of any instruments, such as trusts or wills of others, under
which I am given a power to appoint (that is, the power to designate) to whom
certain assets will go upon my death.
6 - A statement of my approximate income and general standard of living for the
past several years.
7 - Insurance of all kinds, including numbers and face amounts of the policies,
their premiums, and any outstanding loans against them.
8 - Family information, such as the ages and state of health of its members,
adopted children, marital problems, family feuds, and black sheep, if any.
A persons will and other important papers should be safeguarded and kept in a
place where others can find them, such as safe-deposit box. The following should
be kept where it can be found: (1) The location of the will; recent income tax
returns; social security card, pension, and group insurance policies; insurance
policies, stocks, bonds, and other securities; accounts and passports;
safe-deposit vault; military service discharge certificate; deeds, surveys,
title reports, and tax receipts; mortgage documents and amounts of outstanding
loans; partnership agreements, contracts, and similar documents; notes payable;
and copies of notes signed. (2) Certain names and addresses are also needed in
that file: ones attorney, accountant, employer, insurance companies and agents,
stockbrokers, banks, real estate, mortgagee, businesses owned in part or in
whole, debtors, and creditors.
Interestingly enough, most people do not realize that the law does not require
fancy burial expenses or even a special casket. The law requires only that the
body be buried in a cemetery--in a container or cremated. The casket need not be
metal or expensive hardwood; it can be made of pine or even cardboard. Unless
the burial is delayed and the family wishes viewing, no embalming is usually
required. The law normally requires that the body be buried in a container,
within a certain number of days, or cremated. Embalming is done if death was
from a communicable disease or the body is to be shipped across state or
international boundaries. No limousines and all the rest are required.
vf
For much more information on preparing for ones final days,
and the funeral beyond, you are referred to the present authors low-cost book,
Cut Funeral Costs, which can save you a large amount of money.
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