A good estate plan includes both a Will and a Trust, where appropriate.

Where you have a trust, your Will can be what is called a "pour-over" Will, meaning that any assets inadvertently omitted from your Trust will automatically be transferred to your trust by your Will upon death.  While this preserves the integrity of your distribution plans, any such assets are subject to the rules of probate.

The simple Will shown on this site is designed for people whose estates are small or moderate in size (under $1 million) and without complex plans for distributing their estate after death. If your needs exceed these provisions, you should consult an attorney about methods that are designed to conserve the estate by reducing taxes and/or realize the estate planning objectives.

The information provided is not intended as legal advice to you. Please consult your attorney.

Burial Instructions

While your Will is a good location for specific burial and funeral arrangements you may wish to be followed, you should also give a written copy of your instructions to someone who you will entrust with carrying them out. This can be in the form of a simple letter signed by you and giving clear instructions to someone who you can trust to implement your instructions. A sample of such a letter is at the end of this section.

Typical instructions relate to whether or not you want your remains cremated, where you would like to be buried, and whether there are specific instructions regarding your funeral ceremony.

Specific Gifts

Example specific gift:

"I give my collection of Joni Mitchell records to Joan Brindell, my library of art books to the county library, and $5,000 to Aids Healthcare Foundation."

Here you can provide for giving a specific item or an amount of money to a specific person or organization upon your death. Name the item with sufficient specificity that it can be identified and then indicate to whom that item will go.

Note that if the item you name is not in existence at the time of your death, no substitution will be made of another item unless you so specify. If the person you name to receive a specific gift does not outlive you, the gift lapses and is distributed as part of the Residue.

Where you give a specific piece of property, unless you provide otherwise, any debts connected with that item of property will have to be paid by the person receiving that property. For example, if you give someone a car that is not yet paid for, they would have to make the remaining payments. If you want to have the estate to pay off the debt, you must say so in your Will (or Living Trust).

If you are also creating a Living Trust, we suggest that you include the phrase discussed in section below.

Will Residue

The Residue refers to everything in your estate that has not otherwise been distributed as a Specific Gift.

You can name one person or organization to receive all of your estate except that which is distributed under the Specific Bequests provision.

You should then name an alternate person/organization in case the first one you named is not alive or is not willing to take your bequest. You may name more than one person/organization (or combination) and if so, specify the percentage each is to receive, making sure that the total is 100%.

You can also distribute the Residue of your estate to more than one person and/or organization in percentage shares. If one of the named recipients does not survive you, their share goes to the other named recipient(s).

If you have also created a Living Trust, we discuss this issue below.

The remainder if you also have a living trust

If you are also creating a Living Trust, we recommend that you include the following language in the portion of the Will dealing with your estate residue:

  "I give my estate to the John Jones Living Trust. If for any reason any dispositive provision of said Living Trust is found to be invalid, I hereby incorporate each and every dispositive provision thereof as though fully set forth herein."

That way, all assets you own will be distributed through your living trust and not your Will. Of course, if there is a reason you would rather subject the item to probate, leave it in your Will and exclude it from your Living Trust.

The Executor of your Will

The Executor is the person who is charged with carrying out the terms of your Will and wrapping up your estate. Depending upon the nature of your estate, your Executor may need to file a petition with the Probate Court for this purpose. If so, the Court will require your Executor to post a bond equal to the value of your estate as security for her/his actions unless you provide in your Will that such a bond is waived.

Ordinarily, if you think the person you name as Executor is trustworthy beyond reproach, waiving the bond is sensible. It is a cost that will be taken from the value of your estate if required. If you have any doubts, however, the cost of the bond is minimal in comparison with the possible loss of valuable assets.

We recommend that you name an alternate Executor in case the person you name as your primary Executor is unwilling or unable to serve in that capacity. The same considerations as mentioned above apply to the issue of a bond.

Out of State Property

If you own property in another state that has not been transferred to a living trust, that property will have to be probated under the laws of that state and in that state.

We urge you to contact an attorney about any such property and to name in your Will an executor for that property who lives in that state. This would be in addition to the executor named under the provision described above.

Intentional Omissions

Under the law, certain people may have a claim to your estate even if your Will does not specifically name them. In most states this category of people includes your spouse, children, parents and brothers and sisters.

You may, however, override this legal provision by specifically excluding such a person in your Will (However, most states do not allow you to exclude a spouse where the estate consists of community or marital property.

You should list the person(s) by name and describe their relationship to you. It is important to refer to any former spouse in this section if you do not want them to inherit from you.

The "No contest" clause

The sample Will includes a provision that disinherits anyone who contests your Will.

If you expect any significant opposition to your plan for disbursing your estate after your death, this provision may not be sufficient, alone, to meet such a challenge. You need to take special care to document your mental health, your independence in decision making and that your Will is, in fact yours and not the subject of any undue influence.

If you expect a significant challenge, we urge you to discuss this with an attorney.

Sample Burial Instructions

Dear John:

As my trusted friend, I am giving to you instructions for the treatment of my body and for my funeral after I die.

First of all, I want you and only you to make all the decisions regarding these matters. I have designated __________ as my agent under a Durable Power of Attorney for Health. They have the authority to take my body upon my death.

What I want done is that I want my body cremated and the ashes strewn at sea at sunrise. I want you to invite my close friends and family except for __________ to gather before hand for a brief ceremony. I have written out a short statement that I would like you to read to them. I specifically do not want _______________.

Thank you for taking care of this for me.

_______________________________________________

[Your signature]

Providing for A Guardian of a Minor child

If you are a parent of a minor child, you may wish to provide in your Will for who will take care of the minor child if you die during their minority. To do this, you include in your Will a provision naming a guardian of the minor child.

1. Limitations

The law provides, in general, that if one parent dies, the other parent is the legal custodian of any minor children of the couple, whether they were married or not. There are exceptions to this general principle.

For example, if the mother has custody of a child and she dies when the child is 8 years old, the father will be presumed to have custody. If the mother names a third person as guardian of the child in her Will, that will not take precedence over the normal rule about custody.

However, naming such a third person in a Will does give that person legal standing to challenge the father regarding custody, based upon the best interests of the child.

2. Naming a Guardian

In selecting a person to serve as the minor child's guardian after your death, you should select someone who is capable of taking care of the child, is familiar with any possible conflicts with other family members, and who is familiar with the child. If you are naming someone other than a biological parent and you foresee a possible argument regarding who should have custody of the child, consider the background and characteristics of the person you name in the light of a challenge being made to their capacity to serve.

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Here is a sample clause that can be included in a Will to name a guardian:

GUARDIAN OF MINOR CHILD

I hereby appoint Jane Doe to serve as guardian of any child of mine who is a minor at the time of my death.

Codicil to Will

  In order the change the terms of a Will, you create what is called a codicil. A codicil to a Will must be signed in the same manner as a Will. Depending upon it's terms, a codicil can either change only a part of a Will or completely replace it.