Most wills have the same parts and components. The general parts of a will are:
- A preamble
- A revocation of prior wills
- A statement of family
- Specific bequests
- General bequests
- Residuary bequests
- Designation of a personal representative
- The signatures
The preamble clause is generally the first part of a will and includes an identification of the testator and a statement that the last will and testament is being created. An example would be:
I, Jack Ryan, a resident of Springfield, being of sound mind and body and being at least 18 years of age, do hereby make, publish and declare this to be my Last Will and Testament.
Revocation of Prior Wills
Whether as part of the preamble or a separate paragraph, the revocation of wills states that all prior wills are being revoked and is a standard part of most wills.
Under the laws of most states, a later will has the effect of revoking any provisions of an unrevoked prior will which are inconsistent with the later will. Any provision from the prior will that is not inconsistent with the later will can be enforced. It is obviously bad practice to create a new will which does not revoke all prior wills given the problems of trying to determine which provisions of which will govern a given issue.
As example would be:
I hereby revoke completely all prior wills and codicils made at any time by me.
Statement of Family
Most wills identify the family members of the testator, usually a spouse, if any, children, and the children of any deceased children.
Identification is not required, however, if the capacity of the testator were ever to be called into question, a statement of family members can be helpful to establish capacity, especially if a drafting attorney has contemporaneous notes from the testator describing the testator’s family.
An example would be:
I am currently married to Jill Ryan. I have three living children: Barbara, Charlie, and David, and one deceased child, Edgar. Edgar’s children are Frank and Georgia.
If any person is to be disinherited, it can often take place in the statement of family part of the will.
A devise of a specific item to a particular person is known as a specific bequest. Any item of property can be gifted in this manner, including real estate, jewelry, cars, and shares of a particular stock. Examples include:
I hereby bequeath all of my IBM stock to my son Charlie.
I hereby bequeath all of my Apple stock to St. Jude Children’s Research Hospital of Tennessee.
I hereby bequeath my beach house, located at 123 Beach Road, Ocean City, Maryland, to my son David.
I hereby bequeath my Rolex watch to my son David.
A general bequest is a bequest of money payable from the assets of the estate, without a designation of the source of the funds. A cash gift directed to go to a specific person is a general bequest. An example would be:
I hereby bequeath the sum of $100,000 to my daughter Barbara.
A demonstrative bequest is a bequest of money payable from a certain source of funds, such as a particular bank account. An example would be:
I hereby leave $5,000 from my bank account at Bank of New York to my son David.
A residuary bequest is a bequest of what is left of the estate after distribution of all other types of bequests and the payment of creditors and expenses of administration. A residuary bequest is a common part of a will.
An example would be:
I leave the rest, residue and remainder of my estate to my children, per stirpes.
The term “per stirpes” means that the children of any deceased child step into the shows of their deceased parent for purposes of inheritance.
Some wills bequeath the residue to a pre-existing trust, typically a revocable trust. An example of such a clause would be:
I hereby bequeath the rest, residue and remainder of my estate to the Jack Ryan Revocable Trust, dated 1/1/15.
A will that bequeaths the residue to a revocable trust is often referred to as a “pour-over” will, because the residue of the states pours over into the existing trust.
What Happens When a Will is Missing a Bequest Clause?
It is not uncommon for a will to omit specific, general, and demonstrative bequests, where the testator is not concerned about leaving specific items of tangible person property to specific people, and where the testator does not include beneficiaries other than immediate family members. If there are no specific, general or demonstrative bequests, the entire estate is disposed of through the residuary clause.
Occasionally, some wills are probated that lack a residuary clause. This is obviously not a best practice, because the other clauses of the will might not dispose of the entire estate. When a will lacks a residuary clause, the residuary estate is disposed of by the laws of intestacy for the applicable state.
Designation of Personal Representative
Most wills will designate a person to serve as personal representative, as well as one or more backups. If a will does not contain a designation of personal representative, or the persons designated are themselves deceased or decline to serve, state law sets forth who gets to serve as personal representative (or who gets to decide who serves).
An example of a clause would be:
I hereby designate my daughter Barbara to serve as my personal representative. In the event she is unable or unwilling to serve, I designate my son, Charlie, as personal representative.
Although the laws vary somewhat from state to state, every will, to be valid, must be signed at the end by the testator, along with two witnesses. No state requires that a will be notarized, but many states require additional proof to admit a will that was not properly notarized.
Additional Will Provisions
Some wills provide instructions to create a new trust, known as a testamentary trust. (A preexisting trust, often a revocable living trust, can be referred to as an inter vivos trust.) At the conclusion of estate administration, some or all of the residuary assets will end up in the new testamentary trust.
Some wills provide that a trust will be created for any minors who would otherwise inherit directly from the estate. In most states, minors are unable to inherit property. Some states will require a guardianship to receive any inherited assets for a minor. Creating a trust for minors in the will is an excellent way to avoid burdening family members with the cost and hassle of a guardianship. It also avoids creating a trust for all beneficiaries where such a trust is not necessary for all beneficiaries.
Guardianship for Children
Some wills name guardians for minor children. The efficacy of these clauses vary from state to state, but a guardianship judge will usually consider the expressed wishes of the deceased parent.
Payment of Creditors
Some wills direct that the personal representative pay creditors. Such language is not necessary, because the personal representative will be required to follow state law in the payment of creditors. Indeed, if not drafted carefully, such creditor language could end up requiring the personal representative to pay more creditors and claims than state law would otherwise require.
Not every will must contain all of the parts of a will described in this article. However, it is always a good idea to have an estate planning lawyer prepare your will, since do-it-yourself wills can omit key language.
In Terrorem Clauses
An in terrorem clause states that anyone who challenges a will forfeits all entitlements under the will. State law varies considerably in terms of whether such clauses are effective. Florida, for example, has a blanket prohibition on the enforcement of such clauses. In practice, however, most will contests are brought by persons who have been written out of the will in question, making an in terrorem clause moot.