Drafting a Will: What Should Yours Include?
Wills and Estate Planning
Contemplating your own mortality is difficult. Maybe that's why so many people put off the necessity of drafting a will - it makes them feel less vulnerable. However, a will is something that everyone needs to have. Moreover, you can only put it off for so long - and then it's too late. With that in mind, you should put some serious thought and effort into getting your will done today.
Title and Introduction
When it comes to wills, there really is no set form or format. The testator (the person drafting the will) essentially has control over what goes into the will. As a general rule however, the larger the estate is, the more complicated the will tends to be. Still, there are some basic elements that should be contained in every will, starting with the Title and Introduction.
The Title is exactly what it declares itself to be: a title. Basically, the title of a will is normally something along the lines of "The Last Will and Testament of ______________." It is simple, clear, and direct in terms of the message it conveys.
Likewise, the Introduction usually isn't anything fancy. In it, the testator typically reemphasizes that it is his last will and testament. He may further state that he is of sound mind and body, and that after due comtemplation he has decided upon the manner and disposition of his property upon his death, and the will reflects his wishes in such matters. Finally, he might announce that the execution of this will is intended to revoke and/or nullify any previous wills.
Family and Heirs
As the testator's family are his natural heirs, most wills will contain a section wherein family members are identified. Thus, if the testator is married, he will typically state the name of his spouse. In similar fashion, he should name all of his children, including their gender and age. (This way, should he decide to disinherit one of his children, it will be evident that he was aware of them and their exclusion from actually inheriting anything was not just a gross oversight.)
This portion of the will should also include other family members that the testator wishes to include as heirs, (e.g., nieces, nephews, grandchildren, etc.). There should also be a provision, no matter how unlikely, for the possibility of children being born after the drafting of the will. Typical wording of such a provision might be along the lines of, "Should I become the father of any more children after the execution of this will, whether by natural means or adoption, such children shall partake of my estate in a manner equal to that of the children named above...".
Disposition of Estate: Expenses, Bequests and Remainder
Typically, the estate of a testator will have expenses: taxes, car notes, a mortgage, etc. These are all debts that have to be paid, and the funds normally come from the estate. In a properly executed will, the testator will have done a good job of identifying all of the expenses that are to be paid out of the assets of the estate.
In addition, any specific bequests should also be identified. By way of example, specific bequests might be something like the following: "I leave my Steinway Grand Piano to my grandson Chad, who always entertained me with his playing when he visited. To my daughter Grace I leave all of the artwork in my home..."
After dealing with specific bequests, the testator normally dispenses the remainder of his estate (i.e., "the rest and residue") - usually amongst his natural heirs such as children (or representative grandchildren with respect to any children who are deceased). If a testator does not have any living descendants, his heirs-at-law will generally inherit the remainder of his estate.
Poll on Wills
Do you have a will?
Executor of the Estate
The Executor is the person appointed to carry out the wishes of the testator and acts as the administrator of the estate. (In the event the appointed person is female, she is known as an Executrix.) This is the person who will handle payment with respect to expenses, dispose of estate property, etc. In most instances, the testaor will name an Executor and alternate. The alternate has no responsibilities, and will only be called upon if the original Executor can not or will not, for whatever reason, serve in that capacity.
Although in most instances the Executor will have broad powers and authority, the will can be used to set limits on what the Executor can do. For instance, the Executor may be forbidden to sell a certain piece of property (e.g., a vintage car) to pay expenses. Also, the will might require the Executor to post a bond. This would allow the estate some measure of recovery should the Executor abuse his position. (However, it should be noted that requiring a bond might also make one's first choice of Executor decline to take the position.)
Witnesses and Signatures
Needless to say, the testator must execute the will (i.e., sign it) to make it valid and enforceable. Also, although it may vary by state, two witnesses are usually required to sign attesting to the will. Moreover, it is not unusual for the testator and witnesses to sign an affidavit stating that they have signed a document that is the last will and testament of the testator.
Of course, the elements noted above do not constitute everything capable of being put into a will. There are many other items that are worth taking note of. For instance, a "codicil" is a statement that amends or supplements a will. For instance, if you forgot to bequeath you grandafther's gold watch to your grandosn, you can simply draft a codicil rather than having to draft the entire will all over again. Also, rather go through all the formalities of having a will drafted, witnessed, notarized, etc., you could draft what is known as a "holographic will." Simply put, a holographic will is handwritten and unwitnessed, but has to be wholly in the testaor's own handwriting to be valid. In other words, you can't get your secretary, daughter, neighbor, what have you, to draft it for you.
In closing, it's important to remember that - although most have a number of elements - wills don't have to be complicated or cumbersome. By way of example, there is a very famous case of a will that consisted of only three words:
A farmer suffered a freak accident while working out in his field. As he lay dying, he wrote in the dirt with his finger, "All to Mother." This was ruled to be a valid will.
(And FYI: Should you die without a will, that's known as dying intestate. Each state has their own rules for dealing with intestacy, but you can generally expect that the estate of a decendent who dies intestate will go to his surviving spouse and/or children - depending on whether you were married at the time of death, had children, whether you and your spouse had children together, etc.)