Anatomy of a Will

Last Will and Testament

A Last Will and Testament is a basic part of your estate plan. Every adult who has children or has any property, regardless of value, type, or size, should have a Will. Your Last Will and Testament serves three main functions: (1) Your will directs the payment of valid debts and expenses; (2) It passes ownership of your probate assets to the persons named in your will; and (3) It designates a Personal Representative to oversee the administration of your estate.

Here are some of the basics of a Will and what you need to know.

Definitions and Terminology

The terms contained in a Will are often intimidating, but they are generally not complex. Common words and their usages in a Will are:

Last Will and Testament

A Last Will and Testament (also known as the “Will”) is a legal document which outlines who or what will get your assets and belongings, who will take care of your children, and who will be in charge of your estate when you die.

Testator

The Testator is the person creating a Will. You are the Testator of your own Last Will and Testament.

Personal Representative

Your Personal Representative (also known as the “Executor” or "Administrator") is the person you designate in your will to carry out your wishes.

Since they have to follow your Will as it is drafted, it is best to meet with your Personal Representative, first to ask if they accept the responsibility you are giving them, and second to make sure they understand the wishes you are outlining in your Will. Ideally, you will also let your Personal Representative know where to find your Will and other important documents when they need to be accessed.

Beneficiary

Beneficiaries are the people who receive your stuff when you die. You get to designate whoever you want as your beneficiaries, and you can have as many beneficiaries as you wish. Beneficiaries can also include companies, charities, and other organizations. Note: although you can name whoever you want as a beneficiary in your Will, there are some people that you can’t disinherit entirely (for example, your spouse).

Intestate

Although it sounds like a complicated medical disease, “intestate” is simply a legal term for dying without a valid Last Will and Testament. If you die without a Will, you are considered to be intestate. During intestacy, state law will govern all of the things you could have outlined in your Will. The government will make exhaustive attempts to contact anybody who might have a claim to your stuff, appoint an executor of your estate, freeze your assets until it is determined how they should be divided, and name a guardian for your children. If there are competing interests, then intestate succession can become really ugly and costly.

Requirements for a Valid Will

A valid Will must be in writing (meaning typed or printed), signed or marked by the Testator in the presence of two witnesses, and signed by two competent witnesses in the presence of the Testator. The witnesses must have been present for the Testator signing the Will, be over the age of 18 years, and be legally of sound mind. Witnesses must be credible, in most cases meaning not an interested party or beneficiary of the Will.

Elements of a Will

While not an exhaustive list, the following are common provisions to include in your Last Will and Testament:

Bequests of Property

A bequest is the specific gift or direction for your stuff to be left to your beneficiaries, individuals or charities. There are several types of bequests that you, as the Testator, can make:

  • Specific gifts. A specific gift is when a particular named item is left as a gift in your Will (for example, a specific piece of jewelry, a painting, a book, or a keepsake). A specific gift will need to be accurately described in the Will so that your Personal Representative knows exactly what item you intended to leave to your named beneficiary.

  • Pecuniary gift. A pecuniary gift is a gift of money.

  • Residual gift. A residual gift is when you leave all or a part (usually expressed as a percentage) of your estate after all the other gifts have been made by the Personal Representative and any debts and inheritance tax has been paid.

  • Contingent gifts. A contingent gift is a bequest made in your Will to one or more beneficiaries dependent upon the occurrence of a particular event or circumstance. The event must be accurately defined in the Will so that your Personal Representative knows exactly what needs to happen for the contingent gift to pass along to your beneficiary.

Guardian for Children

It is crucial that you name a Guardian for your minor children in your Will. If there is one thing that should take priority, even if your Will is one sentence long, naming a Guardian is it. You may also outline certain specifics of how your children are to be raised, and arrange how they will be financially cared for. If you fail to designate a Guardian for your minor children, then the government will decide based on the law and circumstances of your estate. Often times, the person who makes the most sense to be named Guardian is not the one who is chosen.

Trusts for Children

Let’s say you make a specific bequeath in your Will for some or all of your stuff to pass along to your children. If you die and your kids are the age of majority, they will get all of that stuff. If you are concerned that your children might not make the most responsible decisions for this financial windfall, you may consider setting up a trust for your children. You can then specify how and when your kids receive whatever stuff you give to them, and how that stuff is to be used or invested.

Other Common Clauses

While the foregoing provisions hit the priority topics to include in your Last Will and Testament, other common clauses include the following:

  • Family Law Protection. In your Will, you can insert terms to prevent the spouse or partner of your children from receiving your estate in the event their marriage or relationship breaks down.

  • Common Disaster Clause. In the event you and your spouse pass away at the same time, or within a short period of time from one another, the family of the last to die will be in line to receive the entirety of both your estates. A common disaster clause will prevent this from happening, and generally divides the total estate in half between both you and your spouse’s families.

  • Liability Clause. A liability clause protects your Personal Representative from being sued and being held personally accountable for any losses.

  • Expert Clause. The likelihood of your Personal Representative accepting the position of managing your estate is rather low if he or she will need to pay money for an accountant or lawyer for assistance in carrying out your wishes. An expert clause allows these fees to be taken directly out of your estate instead.

Contact a Wayside Legal Estate Planning Attorney

Wayside Legal LLC is an award-winning law firm located in North Bethesda, Maryland, with experience handling estate planning matters in Maryland, D.C., and Virginia. If you are facing a situation where you need assistance with planning for the future, contact a Wayside Legal attorney today for a consultation to discuss your specific estate planning needs.