Estates/Probate 4

Chapter Four:
Drafting a Basic Will

Wills, Trusts, and Probate Law for Paralegals
Gibson
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.2
Estate Planning Information
 4 General Areas
1. The client’s statistical information
2. The client’s family
3. The client’s financial situation
4. The client’s plan

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Sections of a Will: Title
 “Last Will and Testament of …”
 Formal name
 Use of middle name or initial preferred
 “also known as”

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Exordium Clause
 The introductory clause to a will or a
codicil.
 Often referenced as a publication clause
 Identifies

Maker

Maker’s address

States this is the last will and testament &

Demonstrates intent & capacity to make a will

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Revocation Clause
 The clause in the will that cancels an
already existing will.
 Appears within first paragraph
 Standard language
 Include even if first will

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Directions to pay debts &
taxes
 Instruct personal representative to pay
debts, taxes, and funeral expenses
from the estate assets

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Instructions for Funeral
 Includes:
 Burial vs. cremation
 Organ donation
 Location of funeral
 Location of internment

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Dispositive Provisions
 Fulfills one of the major goals of a will –
to make gifts
 “give” vs. “bequest” or “devise”

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Residuary Clause
 A provision in a will that leaves all
remaining property not previously gifted
to a designated beneficiary.
 Vital component of a will
 Should always be included
 “I hereby give the rest and remainder of my
estate to my wills and estate professor.”

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Disinheritance
 A testator may disinherit almost any heir
from inheriting.
 Deceased spouse cannot completely
disinherit a surviving spouse

Spousal Election

Community Property

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Pretermitted Heir
A child or other relative, whether living or
not yet born, of the decedent who has
been omitted from the will.

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Disinheritance Clause
 Should appear before any gifts are
made
 May include reasons for disinheritance
 Disinherited heirs more likely to bring
will contest action

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“In Terrorem” Clause
A provision in a will that states a beneficiary will
not receive his gift if he contests the will.
“In the event that a beneficiary contests this Will
or any part of it, the gift given to such
beneficiary is hereby revoked, and the gift will
be distributed as part of my residuary estate.”

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Spousal Election
 Dower protected the surviving wife from
disinheritance.
 Curtesy protected the surviving
husband from disinheritance.
 Most common law states have now
adopted spousal election statutes.
 Usually allow ½ interest in fee simple in
deceased spouse’s estate

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Community Property
 Surviving spouse owns ½ of the estate
outright.
 Therefore, upon death of a spouse,
husband and wife share equally in the
division of the community property.

Automatically offers protection to surviving
spouse

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Survivorship Clause
A provision of a will that requires a
beneficiary to outlive the decedent by a
certain specified period of time in order
for the gift to pass to him or her.
• AKA – delay clause

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Simultaneous Death Clause
A provision in a will that provides that another
person predeceased the decedent if it is
unclear who died first.
“If my wife, Joanne Baker, and I die under
circumstances where it is difficult to
determine who died first, it is my intention that
the court shall presume my wife predeceased
me.”

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Nomination of Personal
Representative
 Testator should nominate someone
who
 Is trustworthy
 Has enough business sense/common
sense to manage the estate
 Is in good health

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Fiduciary Duty
 Personal representative has a fiduciary
duty to be fair and honest when
administering the estate.
 Fiduciary  one who acts on behalf of
another with trust and confidence

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Direction Nominating
Guardian
 Should be included if maker of the will
has a minor child or a mentally
incompetent child
 Guardian – a person who has legal
authority and a duty to act on behalf of a
minor or mentally incompetent person

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Testimonium Clause
The provision in a will stating that the testator is
signing and dating the document.
“I freely and willingly sign my name to this will
consisting of two type written pages, including
this page on the ______ day of ________,
20__, in the presence of these witnesses,
each of whom I have required to sign their
names in my presence and in the presence of
all others.”

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Testator’s Signature
 Maker of the will must sign and date the
document
 Blank line should follow the testimonium
clause
___________________
John Taylor

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Attestation Clause
The clause at the end of a will or codicil
which states the witnesses certify the
document was executed before them.
• Witnesses attest or verify that the
testator/testatrix signed the will and the
signature is genuine

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Drafting Tips
 Page numbers
 No interlineations or cross-outs on the
will
 No large blank spaces between
sections or paragraphs

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Execution of the Will
The completion of all actions to make a
document valid.

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Proper Will Storage
 Once executed, the will must be placed
somewhere safe, yet easily accessible
upon the testator’s death.
 Typical storage places:
 Safety deposit box
 Attorney’s office in fireproof safe/vault
 Register of probate’s office
 Fire proof safe/box in the testator’s home

Estates/Probate 4

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