If there isn't a Will, there's usually NOT a way! |

Yesterday, we spoke about advanced medical directives (living wills).

Today, we’ll discuss another document we all need to have (once we have children or reach a certain age)- a will. This document can be simple or complex. But, it does lay out what and how we want our property to be handled should we die. (Please note this is NOT a document to “get even” with those against whom we harbor grudges.) And, this is true for both parents (assuming one is married)- in case a terrible accident steals the rest of our lives, while our children are still around.

We don’t want our kids to fight over our possessions after we die. Even if we “don’t have much”.

I’ve been the trustee left to arbiter over who gets what watch, which necklace, the diamond engagement ring, even books! I know the problems not having a will- or having a will that “gets even” creates.

And, if there is a house involved, it must be made clear who manages the sale (if that is the intention) or who will pay (and how) the mortgage, while the situation is resolved. (Obviously, if the house is bequeathed to anyone, they will be responsible for the upkeep, unless we are wealthy enough to leave an endowment for the maintenance, or to have the house paid in full when we die.)

There really is no standard will. Because each of our states have different rules. But, this document below will help you start the process.

I, John Human, residing at 100 Wonderful Street, Metroplis, MyState, declare this to be my Will, and I hereby revoke any and all wills and codicils I previously made.

(This is critical to ensure that folks know these are your wishes and you are who you say you are- and if someone happens to find an older will, it won’t be able to be used to contest the newer 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.

(Most states require that our debts be paid before any funds or assets are transferred to our relatives, friends, or designated charities. And, that word “enforceable” means that some debt that John Wiseass bought for 1 cent that has long since passed any date it could be enforced or if discharged in bankruptcy won’t get paid a red cent. And, “unsecured” means that the mortgage on your home or a car loan need not be paid, unless you say otherwise.)

ARTICLE II: Money & Personal Property

I hereby give all my tangible personal property and all policies and proceeds of insurance covering such property to my children, Bonnie, Clyde, and Dominic. If any of them do not survive me, I give that property to those 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.

(I am not married. If you were, you probably should consider giving your possessions to your spouse. And, you can stipulate which watch goes to whoever you desire. And, using “proceeds of insurance” means that any damaged property (like the car we wrecked in our death) is not what is turned over to our inheritees, only the insurance payments for said items.)

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 children, Bonnie, Clyde, and Dominic. If any of them do not survive me, the property will be equally shared by the remaining living children. If none of them survive me, then the house should be transferred to the Chemical Engineering department of the Massachusetts Institute of Technology for it to sell or dispose, endowment shall be the Kuchlik-Ackerman Scholar of Chemical Engineering.

(Note that some states will ensure that your spouse gets the house, and if you reside in a community property state, a marital trust should be produced to cover that circumstance, besides.)

ARTICLE IV: Residuary Clause

I give the rest of my estate, residue, and remainder of my estate (called my residuary estate) to my grandson, Amos. If he 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.

(These corny first 12 words are part of a tried and true formula that lawyers have been loath to eschew. It is possible to choose just the first 7 words and jump to the parentheses, but…)

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.

(If we are also preparing a living trust, as well as a will [we’ll get to that tomorrow], it is not wise to make the estate beneficiary different from the trust beneficiaries. It is critical that those responsible for paying the taxes get the benefit of whatever the taxed item(s) may bring. It is possible to add a provision apportioning the taxes to each transfer that is taxable, so that each recipient pays his or her fair share.)

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 is a critical paragraph, as you might have guessed, since I included a grandchild as a beneficiary. If no minors are involved, then skip this article completely.)

ARTICLE VII: Fiduciaries

I appoint my business partner, Sam Spade, as Executor of this will. If he is unable or unwilling to act, or resigns, I appoint my eldest daughter, Bonnie, and my son, Clyde, 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 there is a living trust, name the trustees of that document here as well. Not requiring a bond or security saves your estate real money.)

ARTICLE VIII: Simultaneous Death Clause

(THIS ARTICLE IS ONLY IF ONE IS MARRIED)

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 is critical if you are married. Because it is often unclear- in an accident- who died first. And, the 30 day period covers a lot of contingencies, should someone linger for a while before succumbing to the results of the trauma you both suffered. It’s another way to avoid a lengthy, expensive probate.)

ARTICLE IX: Guardian

(AGAIN IF MARRIED AND/OR MINOR CHILDREN OBTAIN)

If my spouse 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, Bankruptcy King. 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 business partner, Sam Spade.

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

___________________ John Human(legal signature)

SIGNED AND DECLARED by John Human on the date signed above 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)
Debbie Witness

___________________Address

___________________(signature)
Donnie Witness

___________________Address

Self-Proving Affidavit
STATE OF _____________
COUNTY OF _____________

Each of the undersigned, Debbie Witness and Donnie Witness, both on oath, says that:

The attached will was signed by John Human, the testator named in the will, on the ___ day of ___, 20__, at the law offices of Dewey, Cheatem, and Howe, 2 Courthouse Row, Metropolis, MyState.

When he signed the will, John Human declared the instrument to be his last will.

Each of us then signed his or her name as a witness at the end of this will at the request of John Human and in his presence and sight and in the presence and sight of each other.

John Human 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, John Human 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 John Human when the will was executed and makes this affidavit at his request.

___________________(signature)
Debbie Witness

___________________Address

___________________(signature)
Donnie Witness

___________________Address

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

___________________(signature and official seal)
Notary Public