December, 2002

Last Will and Testaments

I recently had the pleasure of probating a will that was taken from a form-book.  The man figured he could save a couple of bucks by doing it himself.  A nice sentiment but it didn't work out in the long run.  The form was deficient and it ended up costing a lot more to probate his estate.  The few bucks he saved drafting the will was more than lost on the other end of the process.  Anyway, this article is not a tirade against the form-book genre.  Instead, I thought I'd just throw out some ideas on things you might want to include in your own will, regardless of how you have it drafted.

1.In Terrorem Clause - As the Latin word for "terror,"  the

purpose of this clause is to strike fear into the greedy little hearts

of your heirs who would make a power play for more than you

intended to leave them.  If they decide to contest your will by

claiming you were of unsound mind, they run the real risk of losing

everything by being left out of your will altogether.

2.Survivorship of Beneficiaries - This clause says if any of your

heirs die within a month of your own death, they will be treated as

having predeceased you.  This is used in the following type of

situation:  You and your 30 year old married son are in a serious

car accident.  You die that day and your son dies a few weeks

later.  Without this clause, your son's estate would be the

beneficiary of your estate.  That means your daughter-in-law is the

real beneficiary.  And if she remarries, then her new husband and

his children from a prior marriage are spending your money. 

However, if we treat your son as having predeceased you, then

his children would be the successor beneficiaries and you are able

to force your assets down your own bloodline.

3.Broad Executorial Powers - You should appoint a trusted

friend or family member to be the Executor of your estate so that

you can give him or her the broadest powers allowed under the

law.  This will reduce the time and legal expenses associated with

probating your estate.  By way of example, there is a provision you

can include which specifically authorizes your Executor to sell real

estate.  Without it, your Executor may have to file a separate

petition with the probate court to do this, adding unwanted time

and legal expenses to the sale.

4.Executorial Discretion for Minor Children - You may also

want to give your Executor broad discretion in distributing money

to a minor child.  It may be a lot of money and the Executor may

not want to just give it to the child directly.  Or the child's parent

may not be a suitable person to hold this money either.  You don't

know and you really can't predict at this point in time.  It is better to

let your Executor make that decision based on the then known

circumstances.

5.Executors Fees - There is some work involved in being an

Executor any you may want this person to be paid a fee for his or

her services.  Or maybe you don't.  Whichever is the case, you

should spell this out in your will.  It will prevent major problems

down the road.  I have seen no bigger fight than that between

siblings when one is the Executor and decides he should get an

additional piece of the estate for his time. 

And of course the most important advice is not to put it off.  Have it done now, not when it's too late.