The Will – A Must-Have
By Albert Northrop
We have explored the myths of revocable living trusts and reviewed some alternatives. The must-have document is the good ol’ Will. As I have mentioned before, it’s best to consult an attorney to have your will prepared properly.
There are two reasons why many attorneys charge very reasonable fees for wills 1) they are used as “leaders,” so that when other legal issues arise, you will go back to the attorney who prepared your will; and 2) most attorneys have will forms on their computer and do not then have to reinvent the wheel. When I was in private practice, my office was near a McDonalds. We used to joke that we could add an extra window for drive-through wills. For probably 90 percent of the wills I prepared over the years, I really only needed to ask about five questions.
Having said that, truth be told, there are too many variables to merely give a standard will in these pages. However, I can give you a check list of things to consider when preparing your will or speaking to that “drive-through” attorney.
First, and most obvious: list your name, and city and state of residence. If your will is valid in the state where it is executed, all of the other states will honor your will.
Secondly, it is usually a good idea, though not required, to add a sentence revoking any prior wills and codicils you may have made (a codicil is an amendment to a will). The mere fact that you execute a new will usually revokes any prior Will. This, then, suggests that you date your will. This is done at the end of the will, twice.
You may, but need not, note whether you are married, single, divorced or widowed, and you may, but need not, name your children and stepchildren. These items will effectively be covered in the substantive paragraphs of the will.
It is a good idea to provide a time period for your legatees, the people who receive or “take” in your will, to survive you. In other words you might for example require that they survive you by 30 days. This may avoid double taxation in some states and may also avoid having property probated twice in a short period of time. Be sure, however, to provide for a contingency if they don’t survive you by the specified time.
Next, you should start making bequests. There are a number of potential pitfalls with “specific bequests.” For example, leaving Uncle Harry’s roll-top desk to my brother, Joe, so I usually advise against this sort of thing. If you trust your personal representative, make him or her a list of specific bequests to make and give them the authority and discretion to make them in the will. The list is nonbinding so you do have to trust your personal representative. (If you feel you cannot trust your personal representative, then obviously you have chosen the wrong person to be your personal representative.)
The general bequests are next. This will usually take the following form: “I give everything to my spouse if he/she survives me. If he/she does not survive me, then I give it all to my children.”
Speaking of children, if you have young children, more detailed provisions are needed. It’s probably not a good idea to leave a couple-hundred-grand to a 12-year-old outright. So, you will need to create a trust within the will and name a trustee. You pick the age at which the trust ends. I tended to suggest age 22 because most children have completed college by that time. In any event, the attorney will be virtually essential in preparing the proper trust language.
Young children also need a guardian. Better that you pick one rather than leave it to the courts, so name one – or two – in the will. The trustee takes care of the money. The guardian takes care of the person. It can be the same person. Unlike the trust, you do not need to pick a termination date. The age of majority automatically terminates the guardianship.
Next up is naming your personal representative or administrator. More often it will be your spouse. You will also want to name an alternate personal representative in case your spouse dies before you do or otherwise cannot serve. Most wills specifically state that the personal representative is excused from posting a bond. It is also best to spell out the powers and authority of the personal representative even though the state statutes will cover it. Your attorney will have the appropriate language necessary.
Many times, a “no contest” provision is added. This in effect says that if someone named in the will challenges the will, they are then excluded entirely from its provisions.
Finally, you sign and date your will, declaring it to be your Last will and testament. This is the first time the will is dated.
The attestation clause is next. The attorney will have the required language or you can find a sample on the Internet. And finally, the will is witnessed and the witnesses dates it – for the second time.
The last I checked all states but Vermont require two witnesses. Vermont requires three. But again, if your will is made in Maryland with two witnesses, Vermont will honor it, just in case you move to Vermont.
As a general rule, the witnesses can be related to you and may even be named in the will. However, best practice suggests that the witnesses be independent.
Al Northrop was admitted to the practice of law in 1975 and is now serving on the Prince George’s County Circuit Court. He can be reached at Judge@OutLookbytheBay.com