Wills are essential documents in estate planning. They provide a clear and legally binding outline of how you want your assets distributed after you pass away. The advancement of technology has brought estate planning into the digital age, allowing people to create wills on their computers from the comfort of their homes. On one hand, this is beneficial as it increases the number of people who have wills, helping them avoid dying intestate, which can lead to complex legal battles and unintended asset distribution. However, there is a downside. Many of these digitally created wills tend to be overly generalized and frequently lack crucial clauses that safeguard your legacy and prevent legal disputes. While we support the use of online will makers for basic needs and even offer our clients free access to such software to ensure they at least have a basic last will and testament, it is critical to work with an estate planning attorney for complex estates.
In this post, I’ll dive into the key will clauses that every will should include to ensure your wishes are honored and your loved ones avoid legal headaches.
Know Your State Law & Rules
The theoretical benefits of a will can be undermined if it's not executed correctly. To prevent disputes, it's important to understand and follow your state's laws. For a last will and testament to be valid, there are certain requirements that must be met. You must be of legal age (usually 18), be of sound mind, and aware of your assets and heirs. Your will must be signed, and in some states, witnessed and notarized. Self-proving affidavits can be helpful, so again know your state’s rules and consult an estate planning attorney.
Key Clauses Every Will Should Include
The more detailed your will, the less ambiguity for your heirs and the court. While each will is unique, certain provisions your last will and testament are common and should always be included.
Introductory Clause and Revocation Clause
Every will should begin with an introductory that includes your full name, the state of domicile where the will is executed, and a declaration that you revoke all previous wills and codicils. This revocation clause is crucial as it invalidates any prior documents and confirms that this will represents your most current wishes. Without it, multiple conflicting wills could emerge after your passing, potentially leading to costly legal disputes for your surviving family.
A quick example of the above two clauses might state, “I, Vitaly Novok, a resident of Illinois, being over 18 and of sound mind, make this my Last Will and Testament, revoking all prior wills previously executed by me including the will written on January 1, 2023”
Bequest Clause
A specific bequest clause refers to particular items or amounts of money that you want to leave to specific individuals. This can include jewelry, real estate, or other valuable assets. If there are multiple heirs to inherit then there can be multiple bequest clauses.
A bequest clause might state “I give $100,000 in cash and Tesla to my daughter Anna”
Residuary Clause
Usually, after all specific bequests are addressed, the residuary clause comes into play. This clause deals with the remainder of your estate - everything that hasn't been specifically distributed to specific individuals or charitable organizations through a bequest clause. It’s crucial to ensure that this residuary clause is comprehensive to avoid any parts of your estate being left unaddressed, which will pass under the laws of intestacy.
A residuary clause might state “I give 100% of my residuary estate to my wife, Irina, if they survive me.”
Appointment of Executor Clause
An appointment of executor clause names the executor, a key part of your will. The executor is responsible for carrying out the instructions in your will, paying debts, and distributing assets to the designated beneficiaries. It's crucial to choose someone you trust fully, as this role involves significant responsibility. Consider naming a successor executor in case your first choice cannot serve.
Sample language for this clause might state “I name John Johnson to be my Executor. If John Johnson is unable or unwilling to serve, I name Mary Robinson as my executor. I grant my executor broad and reasonable discretion in the administering my estate as he deems reasonable and to the fullest extent of the law.“
Guardianship Clause
If you have minor children, naming a guardian in your will is vital. This person will be responsible for raising and taking care of your children if both parents pass away. It's important to discuss this responsibility with the person you intend to name as guardian to ensure they are willing and able to take on this role. Also, consider naming an alternate guardian in case your first choice cannot serve.
A guardianship clause might state "If my children are minors at my death, I appoint my wife Irina as their guardian. If she can't serve, I appoint my sister, Victoria."
Digital Assets Clause
In today's digital age, it's important to consider your digital assets when creating your will. This can include online accounts, social media profiles, digital photos, and any other digital property you may own. Clearly outlining how you want these assets managed or distributed can prevent confusion and ensure that your digital legacy is handled properly.
A digital asset clause might state: "I appoint John Johnson to manage my digital assets, including my online accounts, social media profiles, and digital files."
Debt Clause & Tax-Appointment Clause
Debt clause and tax-appointment clauses allow your executor to pay debts and estate taxes from your gross estate, residuary estate, or allocate them among your beneficiaries.
Sample language for a debt clause might state "I direct my executor to pay all estate, inheritance, and other taxes payable by reason of my death from the residue of my estate."
No-Contest Clause
A no-contest clause can be a powerful tool to prevent legal challenges to your will. This clause stipulates that if a beneficiary contests the will and loses, they will receive a smaller inheritance or even forfeit it. While this may not entirely prevent contests, it can significantly deter frivolous or spiteful challenges, helping to preserve the integrity of your estate plan.
Sample language in the will might state "If any beneficiary under this will contests or attacks this will or any of its provisions, that beneficiary shall forfeit their share and be treated as if they predeceased me."
Attestation Clause
An attestation clause is a section at the end of your will where at least two non-beneficiary witnesses sign, certifying your competence and freedom from duress when the will was executed.
"On January 1, 2023, this Last Will and Testament was signed, executed, and declared by Vitaly Novok as their Last Will and Testament. The testator willingly signed or directed someone to sign for them in our presence or acknowledged to us that this document is their act or deed."
Self-Proving Clause
A self-proving clause includes a sworn statement from witnesses who observed you sign the will. Most state probate courts accept this statement as evidence of the will’s validity, eliminating the need for witnesses to testify in court after your death.
Survivorship Clause
More advanced wills also include a survivorship clause, which requires a beneficiary to outlive you by a certain period to inherit. This clause can replace a simultaneous death clause, avoiding the issue of property from being included in two estates and making distribution easier if a beneficiary dies shortly after you.
For a transfer to a surviving spouse to qualify for an unlimited marital deduction, the survival period should not exceed 120 days; otherwise, the transfer might not qualify. Additionally, a lengthy survival period can delay probate, so many attorneys recommend against it.
For example, a survivorship clause might state "A beneficiary must survive me by 30 days to receive any bequest under this will. If a beneficiary does not survive me by 30 days, their share shall pass as if they predeceased me."
Disclaimer Clause
A disclaimer clause allows a beneficiary to reject an inheritance, which can be helpful for tax planning or personal reasons. When property is disclaimed, it bypasses the disclaiming beneficiary and passes directly to the next designated heir or the residuary estate. Disclaimers are often used to help avoid gift taxes that might apply if the property were first received by the beneficiary and then transferred by gift.
Another use of disclaimers is to prevent overqualification of a surviving spouse’s estate, ensuring it doesn’t exceed the estate lifetime exemption.
Contingent Beneficiary Clause
A contingent beneficiary clause allows you to specify in advance how your property should be distributed if the original beneficiary passes away or refuses to inherit. This clause can direct your assets to be distributed to the heir of the original beneficiary.
Trust Provisions
Including trust provisions in your will can be highly beneficial, especially if you have minor children or beneficiaries who may not be capable of managing their inheritance responsibly. You can establish a testamentary trust within your will, outlining how and when the assets should be distributed. This can provide financial support to your beneficiaries while ensuring that the funds are used in a way that aligns with your wishes.
Sample language in your will might state "I direct that any inheritance left to my minor children be held in trust until they reach the age of 30. The trustee shall manage the funds and distribute them for the health, education, maintenance, and support of my children”
Conclusion
Creating a will is a crucial step in estate planning, and including these key clauses helps ensure your wishes are carried out effectively and without unnecessary legal complications. While the advancement of technology has made it easier to create wills, it’s important to ensure that your will is comprehensive and includes all necessary provisions to protect your legacy. By taking the time to carefully draft your will and consider all potential scenarios, you can provide your loved ones with clear guidance and peace of mind, knowing that your affairs will be managed according to your wishes.
If you need to review your estate documents, we can identify potential flaws but cannot offer legal advice. To avoid disputes, working with an estate planning attorney is essential. We can recommend a suitable attorney and act as a liaison to ensure your needs and goals are effectively communicated. Feel free to book an estate clarity meeting with us.