Making a Basic Will (Annotated)

There is no one standard will that can be considered as legally fool-proof. You also need to take into consideration the laws of your own state when making a will. This is a sample will to give you an idea of what a will could look like, with a simple explanation (in italics) for the different parts of the will.

I, Daniel Gray, residing at 1 Whatever Way, any town, any state, declare this to be my Will, and I revoke any and all wills and codicils I previously made.

The opening sentence is a clear declaration of what is intended in your will, your name, residence, and revocation of any previous will and codicils. This will prevent court battles in case someone will base their argument on an earlier will.

ARTICLE I: Funeral expenses & payment of debt

I direct my executors to pay my enforceable unsecured debts and funeral expenses, the expenses of my last illness, and the expenses of administering my estate.

According to law, all debts of the deceased must be paid prior to the distribution of assets and this clause gives your executor the authority to pay for other expenses such as hospital, court costs and funeral home. Using the word enforceable stops other creditors who may revive debts that you no longer obliged to pay such as those discharged in bankruptcy. The term unsecured prevents the court from interpreting that your estate must pay for all of your secured debts that you may not want to be immediately paid off, such as mortgage. Take note of the laws in you state regarding the payment of unsecured debts. For those states that require payment of enforceable unsecured debts, this clause may be unnecessary and may create problems.

ARTICLE II: Money & Personal Property

I give all my tangible personal property and all policies and proceeds of insurance covering such property, to my wife, Cherry. If she does not survive me, I give that property to those of my children who survive me, in equal shares, to be divided among them by my executors in their absolute discretion after consultation with my children. My executors may pay out of my estate the expenses of delivering tangible personal property to beneficiaries.

This gives your personal property to your spouse. If there are particular items that you want to go to other people (such as heirlooms, jewelry, professional equipment, and so on) you should enumerate them and the person you want them to go to in a separate clause (e.g., “I give my Comic Book Collection to my cousin James Black”), and note that Article II excludes those items. Some people will use separate clauses for legacies (disposition of money) and bequests (disposition of tangible personal property). Note the important clause that accounts for the possibility that your spouse will die first. The clause on insurance means that if some property you owned was destroyed (perhaps in the event that caused your death, like a car wreck), your heirs will receive the insurance proceeds, not the damaged car.

ARTICLE III: Real Estate

I give all my residences, subject to any mortgages or encumbrances thereon, and all policies and proceeds of insurance covering such property, to my wife, Cherry. If she does not survive me, I give that property to __________________.

Most people want their spouse to keep the family home. In some states, particularly community property states, it’s sometimes preferable to leave your residence to your spouse in a marital trust.

ARTICLE IV: Residuary Clause

I give the rest of my estate (called my residuary estate) to my wife, Cherry. If she does not survive me, I give my residuary estate to those of my children who survive me, in equal shares, to be divided among them and the descendants of a deceased child of mine, to take their ancestor’s share per stripes.

Usually, the residuary clause begins “I give all the rest, residue, and remainder of my estate….” because lawyers are afraid to change tried-and-true formulas, and for decades, legal documents never used one word when a half-dozen would do. However, this plain-English form will also work. This clause covers any property you own or are entitled to that somehow wasn’t covered by the preceding clauses.

ARTICLE V: Taxes

I direct my executors, without apportionment against any beneficiary or other person, to pay all estate, inheritance and succession taxes (including any interest and penalties thereon) payable by reason of my death.

It is a common mistake for people to name in a will different beneficiaries to the estate as those named as beneficiaries to the trust. It creates the same problem as when there are certain specific gifts and residuary beneficiaries and the recipients of the specific gifts are not the same person. What will happen is that the one who receives most of the property is not the one who will be paying the taxes, which is unfair to those who will have to pay the taxes; or it could be worse and cause the estate’s bankruptcy. The purpose of this clause is for those who would benefit from the gifts to pay for the respective taxes.

ARTICLE VI: Minors

If under this will any property shall be payable outright to a person who is a minor, my executors may, without court approval, pay all or part of such property to a parent or guardian of that minor, to a custodian under the Uniform Transfers to Minors act, or may defer payment of such property until the minor reaches the age of majority, as defined by his or her state of residence. No bond shall be required for such payments.

This clause gives your executors discretion to make sure any gift to a minor will be given in a way that’s appropriate to his or her age. The “no-bond” language is intended to save the estate money.

ARTICLE VII: Fiduciaries

I appoint my spouse, Cherry, as Executor of this will. If she is unable or unwilling to act, or resigns, I appoint my daughter, Dana, and my son, Carl, as successor co-executors. If either co-executor also predeceases me or is unable or unwilling to act, the survivor shall serve as executor. My executor shall have all the powers allowable to executors under the laws of this state. I direct that no bond or security of any kind shall be required of any executor.

If you set up a trust in the will, you could name the trustees in this clause as well. The “bond or security” clause is designed to save the estate money.

ARTICLE VIII: Simultaneous Death Clause

If my spouse and I shall die under such circumstances that the order of our deaths cannot be readily ascertained, my spouse shall be deemed to have predeceased me. No person, other than my spouse, shall be deemed to have survived me if such person dies within 30 days after my death. This article modifies all provisions of this will accordingly.

This clause serves to minimize the problems that may be caused if you and your spouse die in an accident. Your spouse should have the same clause on their will; even though it seems contradictory to have two wills each directing that the other spouse died first, since each will is probated by itself, this allows the estate plan set up in each will to go forward as you planned.

The second sentence exists to prevent the awkward legal complications that can ensue if someone dies between the time you die and the time the estate is divided up. Instead of passing through two probate processes, your gift to a beneficiary who dies shortly after you do would go to whomever you would have wanted it to go had the intended beneficiary died before you did. Most such gifts go into the residuary estate.

ARTICLE IX: Guardian

If my wife does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children my brother-in-law Josh Ferguson. He shall have custody of my minor children, and shall serve without bond. If he does not qualify or for any reason ceases to serve as guardian, I appoint as successor guardian my cousin Jannah Stone.

I have signed this will this ____ day of ____, 20___ .

___________________
(legal signature)

SIGNED AND DECLARED by Daniel Gray on______ to be his will, in our presence, who at his request, in his presence and in the presence of each other, all being present at the same time, have signed our names as witnesses.

 

___________________
(signature)

May Kyor Will

___________________

___________________
Address

___________________
(signature)

Hewitt Ness

___________________

___________________
Address

 

Self-Proving Affidavit

STATE OF _____________

COUNTY OF _____________

 

Each of the undersigned, May Kyor Will and Hewitt Ness, both on oath, says that:

The attached will was signed by Daniel Gray, the testator named in the will, on the ___ day of ___, 20__, at the law offices of Lex Juris, 5440 Orfite St., Geo, Washington.

When he signed the will, Daniel Gray declared the instrument to be his last will.

Each of us then signed his name as a witness at the end of this will at the request of Daniel Gray and in his presence and sight and in the presence and sight of each other.

Daniel Gray was, at the time of executing this will, over the age of eighteen years and, in our opinions, of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a will.

In our opinions, Daniel Gray could read write and speak in English and was suffering from no physical or mental impairment that would affect his capacity to make a valid will. The will was executed as a single original instrument, and was not executed in counterparts.

Each of us was acquainted with Daniel Gray when the will was executed and makes this affidavit at his request.

 

___________________
(signature)

May Kyor Will

___________________

___________________
Address

___________________
(signature)

Hewitt Ness

___________________

___________________
Address

 

Sworn to before me this_______ day of _______, 20______.

___________________
(signature and official seal)

Notary Public

Would you like to discuss your legal matter?

PHONE

Contact Us RECEPTION (209) 492-9335

Our receptionist will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.

EMAIL

The Law Offices of Tom Hogan will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.