UNIVERSITY OF ARKANSAS SCHOOL OF LAW
WILLS PROJECT HANDBOOK
FALL SEMESTER 2007
[Revised July 27, 2007]
Table of Contents
This Handbook describes procedures specific to the University of
Arkansas School of Law Wills Project. For procedures and practices
not covered by this Handbook, the student attorney should consult the
Clinic Practice Guide. In particular, every student involved with the
Wills Project should review the general information in the section of the
Clinic Practice Guide that covers Arkansas Supreme Court Rule XV
(Student Practice), ethics and professional relationships, and the general
operation of the clinic.
I. Wills Project Description
II. Client Intake Procedures
III. The Estate Plan
IV. The Signing Ceremony
V. Overview of Will Form (with drafting comments)
VI. Sample Estate Plan Memorandum
VII. Wills Project Forms and Related Resources
Appendix—Bibliography of Estate Planning Resources
Throughout this handbook the pronoun “you” refers to the student attorney representing
a client participating in the Wills Project.
I. Wills Project Description
The University of Arkansas School of Law Wills Project began during the
2005-2006 school year. Members of the student organization, Equal Justice Works,
developed the idea for this pro bono activity, in which student attorneys and faculty
supervisors volunteer their time to provide basic estate planning services for clients
referred by Habitat for Humanity of Washington County (“Habitat”). Working with a
faculty member who serves as the supervising lawyer, student attorneys counsel clients
in estate planning matters. Among other things, they review the manner in which the
client holds title to the home and other assets, and they prepare simple wills, advance
health care directives (living wills), powers of attorney, and appropriate will substitutes.
The Project affords student attorneys the opportunity for pro bono service in a
context that mirrors an estate planning practice for clients of modest means. The student
attorneys work under the auspices of the University Of Arkansas School Of Law Legal
Clinic, and they use the Clinic facilities and in general follow Clinic procedures.
Students need not, however, be enrolled in the Legal Clinic to participate. No academic
credit is awarded for participating. Legal Clinic Faculty and volunteer Faculty supervise
and review the student attorneys’ work and provide personal feedback to the individual
To serve as a student attorney for the Project, you must qualify for student
practice under Arkansas Supreme Court Rule XV, Rules Governing Admission to the
Bar. At a minimum, you must have completed the first year curriculum and Professional
Responsibility and must have the approval of the faculty supervisor for the Project.
Usually, students should also either have taken Decedents’ Estates or be currently
enrolled in that course. The anticipated level of demand for the services of the project
determines the number of students who may participate at any time.
II. Client Intake Procedures
The Wills Project provides estate planning services only to clients who cannot
afford to pay for legal services. Although clients initially referred to the Project from
Habitat will have already met the Habitat financial eligibility test, each prospective client
must also complete the Wills Project Eligibility and Estate Planning Questionnaire to
confirm eligibility at the time the client applies for estate planning services.
Project Representation Guidelines
The Wills Project currently will only accept clients referred by Habitat
who meet the Wills Project’s financial eligibility standards and whose estate planning
needs are consistent with the scope of services the Project offers. Clients must be
domiciled in Arkansas. In general, a prospective client referred to the Project by Habitat,
who meets the financial eligibility standards, and who owns a home conveyed directly by
Habitat should be accepted unless it appears that the prospective client needs estate
planning services beyond those provided by the Project. Acceptance of a client requires
the written approval of the supervising lawyer.
In general, the Project offers only the following services, although additional,
related services may be provided with the advance approval of the supervising lawyer:
review and advice concerning the manner in which the client’s assets are titled;
preparation of deeds, payable-on-death and transfer-on death-designations, and other
documents to modify how assets are held (home, bank accounts, cars and other titled
property, and financial assets); review and estate planning advice concerning any life
insurance policies and retirement and pension plans; preparation of simple wills, advance
health care directives (living wills), durable powers of attorney, and durable powers of
attorney for health care purposes.
Although a simple will may include provisions to establish a testamentary trust
for the benefit of minors, this handbook presumes that clients of the Project will not
normally wish to establish an inter vivos trusts. If it appears that the client’s situation
may justify a supplemental needs trust for the benefit of a disabled family member, the
student attorney should consult with the supervising lawyer for additional guidance.
Periodically, we schedule a session with prospective clients at Habitat’s offices so
that we can cover eligibility and other preliminary matters in a group session, but not all
prospective clients will have attended a meeting of this nature prior to your initial
interview with the client. The description of the initial interview that follows here
presumes that the client has not been pre-qualified or screened in a group session. If the
client has been pre-qualified, then some of the steps described here will have already
been completed before you meet the client for the first time.
Once a prospective client has established financial eligibility, you should prepare
an engagement agreement and schedule an initial interview to determine whether the
Project should accept the prospective client. The Clinic conflict of interest procedure
applies to the Wills Project. Note that for client contacts, Arkansas Supreme Court Rule
XV requires either that the supervising lawyer participate or that you videotape the client
contact. The Wills Project procedure requires that, unless otherwise approved in
advance by the supervising lawyer, both the student attorney and the supervising lawyer
must be present during the interview and at any other time the student attorney provides
counseling or other substantive legal services.
Keep in mind that once you receive any confidential information from the client
or provide any legal advice, you have probably established an attorney-client
relationship. You must resist the temptation to provide advice (including answering
questions about legal matters) until the supervising lawyer approves acceptance of the
prospective client under the Project guidelines and you, the client, and the supervising
lawyer have signed the engagement agreement. Until that time, you should only gather
information necessary to qualify the client and to explain the services the Project is able
to offer to clients if they are accepted.
At the beginning of the interview, explain to the prospective client that you will
be asking questions and collecting information during the interview to determine whether
the Project can accept the representation. Also explain that if the client meets the
Project’s guidelines, the nature and scope of the services to be provided will be described
in a written agreement, and that neither you nor anyone else involved with the Project
can provide any legal services except in accordance with a letter signed by you, the
supervising lawyer, and the client.
During the initial interview, you should use the Project’s Eligibility and Estate
Planning Questionnaire to determine who the client or clients would be and to catalogue
the prospective client’s assets and liability and to identify other facts and circumstances
relevant to the estate planning services. If the representation will be on behalf of more
than one client (for example, a husband and wife), explain that ethical rules require that
you must be free to share all information and advice with each client and that you will be
unable to accept the representation or continue with it if it appears that any conflict of
interest exists between the clients involved. For convenience, this handbook generally is
written as if each representation involves one client only.
If the information gathered during the interview satisfies the supervising lawyer
that the prospective client meets the Project’s guidelines and that no reasons appear that
call into question the appropriateness of accepting the engagement, the supervising
lawyer will accept the representation, and you will ask the client to sign the engagement
agreement in duplicate. The student attorney, the supervising lawyer, and the client all
must sign the agreement. You should give one copy of it to the client.
Once the supervising lawyer has approved acceptance of the client, you should
review with the client the engagement agreement that you prepared prior to the
interview. Note that the Project’s form of engagement agreement includes a variation to
use if there are multiple clients. Normally, joint representation will involve a married
couple, but there may be other circumstances in which the Project may accept joint
clients for estate planning services. If the client appears to understand the nature and
scope of the proposed representation and approves the terms of the agreement, you, the
supervising lawyer, and the client should sign the agreement. If the prospective client
wants more time to go over the engagement agreement (for example, an elderly person
may want to have someone else review the letter), do not sign the letter, but give a copy
of it to the prospective client and establish a date by which the client must contact you if
he or she wants to proceed.
If you need additional information from the prospective client before accepting
the representation, or if you or the prospective client need additional time before
proceeding with the representation (including the situation in which the client wants
additional time to review the engagement agreement), you should provide a written
explanation describing what is necessary to proceed, and you should tell the prospective
client when to expect a decision, or you should agree on a deadline by which the
prospective client should contact you. Normally, you should do this by letter. In most
circumstances, you should be able to provide the decision within 10 days. You should
explain to the prospective client that legal services will not be provided unless and until a
decision is made that the proposed representation is within the Project’s guidelines and
an appropriate engagement agreement has been signed.
III. The Estate Plan
Once you have accepted the engagement and you have gathered enough
additional information to determine the client’s estate planning objectives, you should
prepare a brief memorandum to the supervising lawyer that outlines the estate plan you
recommend for the client, and you should prepare the initial draft of the documents the
plan requires. You may need to meet with the client more than once to gather the
information necessary to prepare the memorandum and to draft the documents. Your
memorandum should consider all of the relevant circumstances, including the client’s
assets and liabilities, family situation, and objectives.
Your memorandum should reflect at least the following considerations:
Avoiding or Simplifying Probate. The clients we represent have limited financial
assets. Most of the clients should have a modest or substantial equity in the home (that
is, the fair market value of the home should be greater than the balance of the mortgage
debt). Beyond that, most of the clients will own personal property that has a relatively
small net value after adjusting for debts and depreciation, and they may have modest
bank account balances, life insurance, and pension benefits. Under these circumstances,
the costs and time involved in probating a will, or even in distribution without
administration under the small estate procedures, may be significant enough to
discourage surviving family members from taking action under the Probate Code.
Consider the extent to which the client’s estate planning objectives can be
satisfied through the use of will substitutes, such as: tenancy by the entirety or joint
tenancy with right of survivorship; a beneficiary deed that names a transfer-on-death
beneficiary of real property in accordance with Ark. Code Ann. ' 18-12-608 (this is a
relatively new device for Arkansas established by the Legislature in 2005); payable-on-
death bank accounts and savings bonds; and transfer-on-death securities accounts
(although our clients will rarely own securities, some may have mutual fund accounts or
may participate in an employer stock plan). The use of will substitutes may successfully
avoid the need for probate for some of our clients. When we represent a married couple,
this will often be true for the estate of the first spouse to die. But it will be more difficult
to avoid probate if you are planning an estate in which one or more of the surviving
beneficiaries may be minor children, as will often be the case. If proceedings under the
Probate Code are likely, consider whether and how the estate plan can simplify the
process when the time comes by facilitating the prospects for taking advantage of the
small estates option for distribution without administration (Ark. Code Ann. '' 28-41-101
While estate planning attorneys frequently prepare revocable inter vivos trusts
(trusts that become effective immediately rather than at the client’s death) to avoid
probate, the Wills Project is not currently recommending this course of action to our
clients. While we are open to this approach in an appropriate situation, we have
concluded that using inter vivos trusts has several disadvantages for our clients. First,
the client would need to be aware of and attend to additional administrative
considerations that could make it difficult to assure that the trust continues to serve its
purposes over time. For example, the client would need to make certain to title assets in
the trustee or to transfer them to the trust. While private clients can afford to consult
with their attorneys periodically about trust administration details, the Wills Project
procedures require that we terminate the attorney-client relationship once the client has
signed the initial documents. We cannot commit the Wills Project or the Clinic to
provide ongoing services to clients. Secondly, most of our clients have young children
who will be their primary beneficiaries. Especially in situations in which a client is
survived by minor beneficiaries, we believe that we secure some additional level of
protection for the client and the beneficiaries by using testamentary trusts rather than
inter vivos trusts because the initial disbursement to the trustee under a testamentary trust
will be made under a court order and the court will have continuing jurisdiction over the
trustee. While probate administration is often a disadvantage for clients, we prefer some
level of court involvement for purposes of the initial distribution to the trustee.
Family and Health Circumstances. One of the most important planning decisions
that a parent makes is to nominate a guardian (and a successor guardian) for minor
children. You should also consider any relevant circumstances involving any other
persons who are part of the client’s household or for whom the client has responsibility.
You should have determined during the interview(s) whether the client wants to sign an
advance health care directive or any powers of attorney. You should advise clients about
the advantages and disadvantages of these planning tools, although the client must
ultimately make the decision. Recognize that a client who does not have a trusted and
capable spouse or close relative may be understandably reluctant to authorize anyone
else to act as an attorney in fact or proxy for decisions involving property and health
Will. While the primary plan for a client may be based at least in part on will
substitutes, every plan should include a simple will to cover miscellaneous assets and to
serve as a backup if, for example, the client acquires new assets, or a beneficiary of a
non-probate transfer predeceases the client, or some other change in circumstances
leaves the client with probate assets. A will is also important as a vehicle for a parent to
name a guardian for minor children and to establish appropriate asset management for
minor beneficiaries (usually through a testamentary trust). Your memorandum should
discuss how the Project will form should be modified for the client. What optional
provisions should be included, and are there any special circumstances that require
substantial deviations from the will provisions that are pre-approved for the Project?
With respect to these matters and related issues, review Part V of this handbook
(Overview of Will Form).
Draft Documents. Unless you determine that the representation requires
significant consultation with the supervising lawyer, you should attach to your
memorandum complete drafts of the documents you propose. Your drafts should
conform to the Project forms, and you should explain in your memorandum any
significant deviations. For these purposes, “draft” normally means your proposed final
form for execution by the client and not a rough or working draft.
IV. The Signing Ceremony
You should schedule the signing ceremony with the client and the supervising
lawyer approximately two weeks in advance. Be certain to reserve a clinic conference
room and confirm that a notary public and two witnesses will be available at that time.
Confirm the date and time for the signing by a letter to the client.
Although the supervising lawyer will be present for the signing, you will conduct
the ceremony. Before the ceremony begins, review the Will Execution Procedure, which
is included at the end of this section, as well as the Project’s form of Estate Planning
Checklist. You must complete the checklist during the ceremony, sign it, and include it
in the client’s file.
Remember that if a will or other estate planning document that you prepare is
ever challenged, you and the witnesses may be unavailable and memories may be weak.
The approved Project procedures provide the best defense of the documents and your
work. Even if you or a witness cannot recall the details, everyone involved with the
Project will remember that the standard operating procedure was to follow a strict ritual
that insured compliance with the formalities required for a valid will. Although your
Decedents’ Estates casebook was filled with will contest cases, very few attested wills
executed in accordance with careful procedures will ever be challenged, and of those that
are challenged, even a smaller number will be denied probate. There is no reason to
create a risk that a document you prepare may become one of the rare exceptions.
Prepare an end-of-engagement letter in advance of the signing. In many
situations, at the end of the will signing ceremony, you should be able to give a copy of
the letter to the client, along with the original documents except for any documents for
which you have further responsibility, such as deeds or bank account signature cards.
(Please note that the Clinic does not have the capacity or procedures in place to retain the
original documents on behalf of clients.) If it is not feasible to give a copy of the end-of-
engagement letter to the client at that time because you still have significant
responsibilities to complete, then you should send the letter to the client as soon as
possible after the client has signed the will and other documents.
Before the client leaves after signing the documents, you should go over with the
client the important matters covered (or that will be covered) by the end-of-engagement
letter, such as the advice to keep the original documents in a safe place, never to mark on
the original documents, and to be aware of future occurrences and changes in
circumstances that may suggest the need for a review or modification of the estate plan.
Also explain to the client that the representation has come to an end and that neither you
nor the Project will be able to provide additional services unless the client submits a new
application for services and is accepted again as a client. If you will be recording any
deeds or processing any documents, describe to the client what you will be doing and
explain that when you have completed those steps the representation will end.
You must immediately record any deeds and take all other steps required to
conclude the representation. You must keep track of the status of these steps, which may
include obtaining recorded deeds from the recorder’s office and securing confirmations
that any other transfer or title documents and beneficiary designations have been
properly processed. Estate planning services account for a disproportionate number of
professional responsibility complaints, and many of these complaints arise because
lawyers fail to wrap up loose ends after the documents are prepared or signed. You
should assemble and return to the client any recorded deeds or other documents promptly
after you have all of them. Your transmittal letter to the client should list the documents
enclosed, provide any appropriate information, and state that the representation has come
to an end.
WILL EXECUTION PROCEDURE1
Follow these procedures when supervising the will signing:
(1) The pages of the will must be fastened together securely and each page of the
will must be numbered.
(2) The student attorney must confirm that the client has read the will and
understands its contents.
(3) After the student attorney has answered any questions the client has and has
determined that execution may begin, the student attorney, the supervising attorney, the
testator, two disinterested witnesses, and a notary public are brought together in a room
from which everyone else is excluded. The door to the room is closed. No one enters or
leaves the room until the ceremony is finished. The student attorney should introduce
everyone in the room and should ask for everyone’s undivided attention until the
ceremony has been completed. This should include asking everyone to turn off cell
phones or other devices that might produce an interruption.
(4) The student attorney asks the testator the following three questions in a voice
loud enough for everyone in the room to hear:
(a) “Is this your will?”
(b) “Have you read it and do you understand it?”
(c) “Does it dispose of your property in accordance with your wishes?”
After each question the client should answer “yes” in a voice that can be heard by
the witnesses and the notary. (It is neither necessary nor customary for the witnesses to
know the terms of the will. If, however, the student attorney foresees a possible will
contest, the student attorney should discuss with the supervising attorney added
precautions that might be taken.)
(5) The student attorney asks the client the following question. “Do you request
_______________ and _________ (the witnesses) to witness the signing of your will?”
The client should answer “yes” in a voice audible to the witnesses.
1 This is based on the procedure recommended in Jesse Dukeminier et al., Wills, Trusts, and Estates 216
(2005), which in turn is derived from that originally recommended by Professor W. Barton Leach in
Cases on Wills 44 (2d ed. 1949), as revised by Professor A. James Casner in 1 Estate Planning § 3.1.1 (6th
ed.. 2004 with Jeffrey N. Pennell).
(6) The witnesses should be standing or sitting so they can see the client sign,
and the student attorney should direct the attention of the witnesses to the client. The
client should sign on the margin of each page of the will. The client then signs his or her
name at the end of the will exactly as the client’s name appears at the beginning of the
(7) At the student attorney’s request, one of the witnesses reads aloud the
attestation clause, which attests that the procedure described above was followed.
(8) Each witness then signs and writes his or her address next to the signature.
(9) A self-proving affidavit, typed at the end of the will, swearing before a notary
public that the will has been duly executed, is then signed before the notary public, who
in turns signs and attaches the required seal.
(10) If the client is to sign documents in addition to the will, the student attorney
should review any procedures relating to those documents (such as execution before a
notary public) with the supervising attorney in advance. At the appropriate time, the
student attorney may wish to explain that the signing ceremony is complete, thank the
witnesses and dismiss them. After the ceremony the student attorney should make
photocopies of the original executed will (and the other documents) and should review
the will to confirm that all the signatures are in the correct places and that each page is
signed in the margin. If an error was made, it is easier to correct promptly by redoing
the execution ceremony than by litigation after death. The student attorney should then
write a short memo to the file noting that the Will Project’s usual execution practices
were followed and noting any problems. If the student attorney has any post-signing
responsibilities (such as recording a deed) the student attorney should immediately
complete those responsibilities and document that fact in the file. The student attorney
should promptly send to the client an end-of-engagement letter that encloses the original
will, together with all other original estate planning documents prepared for the client
and any documents obtained from the client during the representation. The Clinic and
the Wills Project do not retain original estate planning documents for clients.
V. Overview of Will Form (with drafting comments)
The Project’s will form is a simple one that is intended to minimize legalese
without compromising clarity, completeness, and precision. Because the Wills Project
values uniformity and consistency, changes to the form that are structural (i.e., not
specific to the client’s situation) require the approval of the Project’s supervising
attorney. But because all forms are always under construction, student attorneys should
suggest improvements and corrections whenever they seem appropriate. No form can
contemplate all possibilities and circumstances. For that reason, as the Wills Project
progresses, we will continue to develop supplements and alternative provisions to
preserve variations and modifications that may be useful to consider in a variety of
As you work with the will form, keep these specific comments in mind:
1.For the sake of consistency and the ease of review by the supervising attorney and
Will Project attorneys who may be called upon to review clients’ wills in the future,
preserve the Article numbering and order of the form whenever feasible.
2.Provisions enclosed in brackets [ ] in the form call for the student attorney to select
the appropriate alternative or to determine whether the bracketed provisions are
relevant or appropriate to the situation. A will should not be executed with
alternative language retained in brackets.
3.Article One (Identifications and Definitions): The provisions of subsections A and
B must be edited to reflect the client’s situation. Subsection C establishes a general
rule that beneficiaries must survive by at least 45 days. This reflects the assumption
that this period probably conforms to the average client’s desire not to leave property
to someone who does not live long enough to benefit from it. The 45-day period is
short enough that it will not prolong probate. Many of our clients’ estates should
qualify for distribution without administration under Chapter 41 of Title 28, which
permits the small estates affidavit to be filed as early as 45 days after the death. (For
tax planning purposes, many estate planners use a separate survival rule concerning
spouses, but our will does not include that option because the Wills Project does not
serve clients who need tax planning).
4.Article Two (Personal Representative): We prefer naming at least one alternative
5.Article Three (Payment and Expenses): The introductory phrase contemplates the
possibility that a more specific provision of the will may state contrary directions
concerning specific debts. When that is the case (rare for our clients), however, it
may be best to edit Article Three to avoid apparent conflicts rather than simply to
rely on the introductory phrase.
6.Article Four (Distribution of Property): These provisions are the heart of the form.
If the client does not wish to leave all property to the same beneficiary or
beneficiaries, then divide Article Four into separate paragraphs for different
categories of devises. For example, there may be separate paragraphs captioned
“Monetary Gifts,” “Items of Personal Property,” and “Residue of Estate.” Some
clients may wish to take advantage of the option under Ark. Code Ann. '
28-25-107(b) to leave a separate list to dispose of items of tangible personal property.
This is acceptable and may be accomplished by including a separate paragraph in
Article Four to refer to the list. But students should exercise discretion in deciding
whether to suggest this option to the client unless it seems especially indicated by the
client’s questions or expressed desires. Some clients (especially clients who will not
have continuing access to legal advice) might easily be confused by the process of
using such a list or by the statutory provisions concerning the kinds of property that
can be disposed of in that manner. Article Four also provides for “per stirpes” shares
to descendants in accordance with the statutory definition of that term that applies in
the case of intestate succession. Student attorneys should use discretion in deciding
whether it will be useful to explain this technical concept in any detail. For example,
if a child of the client has already died and left children, it may be appropriate to
explore the issue, but it may be inappropriate to do so if the client’s current family
circumstances make the question remote and irrelevant. If a designated beneficiary is
someone other than a child of the testator, you should discuss with the client how the
property should pass if the beneficiary does not survive the client.
7.Alternative Article Four (including testamentary trust): In appropriate cases, you
should use Article Four to establish a testamentary trust or to take advantage of the
Uniform Transfers to Minors Act or the Arkansas Custodial Trust Act. The most
common situation we face involves a client who is a single parent of one or more
minor children who will be the primary beneficiary or beneficiaries. The bracketed
provisions of the form that establish a testamentary trust merely provide a sample
based on one possible client situation. The circumstances of clients for whom a
testamentary trust may be appropriate will vary greatly. Each situation will require
careful consideration. Among other things, you should consider these issues relevant
to a testamentary trust for our clients: (1) Is an appropriate person available to serve
as trustee? The role of trustee involves a degree of attention and diligence requiring
a mature, careful, and trustworthy person. (2) Will someone be willing to serve as
trustee for no compensation? The value of the trust property will almost always be
insufficient to justify the fees of an institutional trustee. Additionally, under the
Arkansas Trust Code, the trustee is entitled to reasonable compensation. If the
designated trustee is unlikely to be willing to serve without compensation, use of a
trust may be impractical. (3) Is it financially feasible to leave the house in trust?
Unless the beneficiary will have sufficient income (from other trust assets, social
security or pension survivor benefits, or otherwise) to pay the Habitat mortgage and
to pay taxes and maintenance costs of the house, use of a trust to provide a residence
for the beneficiary may be impractical. Some clients may have sufficient life
insurance to provide a source to pay these costs. If that is the case, be certain that the
client properly designates the primary insurance beneficiary as “the trustee of the
trust established under my last will” and names the contingent beneficiary as “my
estate.” While attorneys in a normal estate planning practice will often avoid this
approach for tax and other reasons, for our clients this is often the best way to assure
that life insurance proceeds will be held for the benefit of minor children and used, if
possible, to keep up the Habitat mortgage payments. Most clients who have life
insurance will have already designated the children or another relative as the
beneficiary, and you will need to ask the client to bring to you a change of
beneficiary form from the insurance company. Some clients who do not have life
insurance may be able to discuss with the designated trustee the possibility of paying
the mortgage payments and related housing expenses in exchange for permission
(which would need to be provided for under the terms of the trust) to live in the
house with the beneficiary. Other clients may want to explore other strategies for
preserving the equity in the house for their beneficiaries, such as leasing the house to
8.Article Five (Guardianship): Explain to the client that the guardian need not be the
same person as the personal representative (or any trustee). Also, if the client is
divorced, the ex-spouse may have parental rights that will take precedence over the
client’s guardianship designation. You may need to explore and discuss this issue
with the client.
9.Article Six (Powers and Duties): This provision merely incorporates a statutory list
10.Article Seven (Choice of Law): As a matter of formatting, this provision (which
has little substantive value) should normally be at the top of the signature page so
that the testator’s signature and the attestation clauses with the witnesses’ signatures
all appear on a single page. In many instances this formatting may be possible
without need to include the explanatory statement that the bottom of the previous
page was intentionally left blank.
11.Signature lines: Where the main signature line states “Name” enter the client’s
12.Witnesses: Either add the names of the witnesses below their signature lines in
advance or ask the witnesses to print their names below their signatures.
13.Affidavit of Attesting Witnesses (self-proving affidavit): In some cases it may be
necessary to delete some of the factual statements. For example, some clients may
have difficulty with English or may suffer from a seeing, hearing, or speech defect.
In those cases, delete the untrue statement(s), but write a memorandum to the file
explaining how you handled the special circumstance (for example, you may have
arranged for the will to be read to the client in the client’s native language by a
VI. Sample Estate Plan Memorandum
To: Professor ________________
RE: Memo explaining ____________’s estate documents
Ms. _____’s main concern was to leave all her property to her children without
her ex-husband being able to reach any of the assets. At the beginning of the case we
debated whether or not to use a testamentary trust, a gift to minors, or to rely on
guardianship. We eventually decided to use a testamentary trust because Ms. _____
really wanted to have her sister have control over any money, assets, or property left at
her death until the youngest child reached the age of 25. Also, we thought having a trust
would be good because Ms. _____ does not want her ex-husband to be able to reach or
use any of her property, except for the house. If Ms. _____ dies while her ex-husband is
still alive, he has been designated as the guardian of Ms. ____’s two daughters based on
the divorce decree, and if she dies before her children reach the age of majority she
wants to allow her ex-husband to live in her house until the youngest child reaches 18
years. Also, she wanted to designate her sister as the substitute guardian if her ex-
husband is no longer living.
In the will, I designated that all of Ms. _____’s tangible personal property will be
left to her children in equal shares and any residue is to be governed by the testamentary
trust. I provided for this so that if she acquires any valuable intangible property it will
pass through the residue, which is governed by the trust, and Ms. _____’s ex-husband
will have no opportunity to get his hands on it even though he would be the guardian of
As part of the trust, I provided that the house and the residue of the estate are to
be governed by the trust and I identified Ms. _____’s sister, _____, as the trustee. I also
designated a substitute trustee, _____, if Ms. _____ is unable or unwilling to act as
trustee. The trust provides that the trustee has full discretion to distribute income or
principal of the trust to the children for support, maintenance, and education until the
youngest child reaches 25 years, at which time the principal is to be distributed to the
children in equal shares. However, the trustee has the power to distribute the principal
before the children reach 25 at her discretion. Also, the trust states that Ms. _____’s ex-
husband may live in the house with the children while he is acting as guardian, so he
may live there until the youngest child reaches 18 years and then he must move out. Any
other trust assets may be used to pay any costs for maintaining or repairing the house, the
mortgage, utilities, property taxes, and other amenities. I specified that the ex-husband is
to have no control over any of the trust property and will not be responsible for paying
any expenses dealing with the house. The trustee will have control and discretion over
paying these expenses. Also, I specified that the ex-husband will not be considered a
beneficiary or a trustee of the trust.
Finally, I have prepared a living will, a durable power of attorney for health care,
and a durable power of attorney for financial purposes. Ms _____ said she will look over
these documents and talk with her sister to determine about her power of attorney and
living will. She decided to appoint her sister as her agent for both the power of attorney
for health care and the power of attorney for financial purposes. I will also assist Ms.
_____ in reviewing and changing, as appropriate, her life insurance beneficiary
designations so that the proceeds will be assets of the trust. I believe that Ms. _____’s
life insurance, which is provided through her employer, will provide sufficient funds to
pay the mortgage and other expenses relating to the house.
VII. Wills Project Forms and Related Resources
Note that in addition to the Will form and other forms already mentioned in this
Handbook, the Wills Project has adopted several other forms. Unless otherwise
approved by the supervising lawyer, you should base the documents on the Wills Project
forms, but you should be careful to adapt each form to the specific circumstance. The
Wills Project forms (available in electronic form to participating students from the
Project supervisor and on Clinic computers) include the following:
Eligibility and Estate Planning Questionnaire
Estate Planning Checklist
Advance Health Care Directive (Living Will)
Durable Power of Attorney for Health Care Purposes
Durable Power of Attorney for General Purposes
The attached appendix is a bibliography of helpful estate planning resources. For
the key Arkansas statutes governing wills, trusts, and estates, consult the Decedents’
Estates Supplement used in Prof. Circo’s Decedents’ Estates Class. You do not need to
be enrolled in the class to obtain access to the current version of the Supplement; you
only need to be a current student at the School of Law and to “register” for the class on
Bibliography of Estate Planning Resources
Decedents’ Estates Supplement (Detailed information regarding Arkansas statutes and
selected Arkansas authorities). The DE Supplement is posted to Professor Circo’s
TWEN site for his Decedents’ Estates class.
William M. McGovern, Jr. & Sheldon F. Kurtz, Wills, Trusts and Estates (3d edition,
2004). The library has a copy of this popular hornbook.
Jule E. Stocker, et al., Stocker and Rikoon on Drawing Wills and Trusts (12th ed. 2003).
The up-to-date edition of this Practicing Law Institute drafting treatise is available on
Thomas D. Begley, Jr. & Jo-Anne Herina Jeffreys, Representing the Elderly Client—
Law and Practice (2000). The library also has this resource, which is updated
Victoria Ferreira, Brantley and Haught’s Arkansas Probate (2d ed. 1993). This brief
guide to probate procedure is available at the library reserve desk. Be careful when
using this resource because it is significantly outdated in some respects because of
revisions to the Probate Code.
William D. Haught, Arkansas Bar Association Probate System (Probate Law Practice
Handbook) (2005). This Arkansas Bar Association publication relating to probate
practice is available at the library reserve desk.
Lawrence H. Averill, Jr. & Hon. Ellen Brantley, A Comparison of Arkansas’s Current
Law Concerning Succession, Wills, and Other Donative Transfers with Article II of the
1990 Uniform Probate Code, 17 U. Ark. Little Rock L. J. 631 (1995).
Lynn Foster, The Arkansas Trust Code: Good Law for Arkansas, 27 U. Ark. Little Rock
L. J. 191 (2005).
Arkansas Bar Association’s Health Law Section’s Living Wills and Other Information
on End of Life Decisions. (Note that the Wills Project form is a variation of the Bar
Association’s form that includes changes that we have found generally appropriate for
our clients.) These materials are currently available through a link at the Arkansas Bar
Association’s website: www.arkbar.com/index.html. Other useful materials may also be
available through that site or through the Bar Association’s Probate and Trust Law
The Arkansas Legal Services Pro Bono Partnership website: www.arlegalservices.org.
Also, the law library has many other resources for estate planning, many of which you
will find under Library of Congress Classifications KF730-780.