Following these remarks is an only-slightly edited version of my actual Last Will and Testament, for your edification and amusement. I've done more complicated ones for clients, but I owe them a duty of confidentiality. This one, aside from being my own, is totally generic.
Who Needs a Will?
Parents, that’s who. I’m noding this as a PSA for E2Parents.
This will isn’t about money. It’s about children. Specifically, who becomes guardian if my wife and I both die.
Do I anticipate that anyone will challenge what I want? No, but this makes it easier on our family. Nobody has to litigate, argue or even think about it: they know this is what we wanted. We just took the extra step of making it legally binding since we know how.
Please note that, if I die before my wife, she gets the money and the kids, and vice versa. This is what would happen without a will, at least in my state. The will is only really significant if we are both get killed at the same time. Given modern transportation, that can happen.
As for property, this will doesn’t do much. It would suffice as a simple trust for the boys, and I don’t need much more because I don’t have a big estate. I like the way it handles personal property (that means everything other than cash and land, basically). See Article VI. Basically, you just refer to a list of things you keep with your will. I use this same clause in wills I draft for clients, because it is so convenient. This means that you don’t have to plan the disposition of the family silver or that antique Coo-Coo Clock. You just put this in a separate list. The advantage of that is, you don’t have to revoke the will and make a new one everytime you acquire another hierloom clock. This doesn’t work with real estate. If you buy land you have to change your will.
If you have enough money that you are concerned about estate taxes, that is, household assets or a business worth more than $1 million, then see a estate planning lawyer. They know how to set up trusts that comply with tax law.
A special problem: say you are divorced and you want to make sure your ex does not get custody of the kids. Can a will help? The answer is: it’s complicated and I don’t know. You need to see a lawyer.
Another problem: say you are homosexual and want to be sure that your life partner becomes guardian of the step kids. Can a will help? The answer is: it’s a start, but you may want to do more, like formal adoption. See a lawyer.
Are we noting a trend, here? Got a problem... see a laywer.
Can I Just Copy Yours?
I suggest: use mine to plan yours. I know many of you have never seen what a real will looks like. Now you can look at one.
Then (1) see a lawyer, or --almost as good for everyone with a simple, generic situation like mine-- (2) get some “make-you-own-will” software.
This will was based on New Mexico law, which follows the Uniform Probate Code, so it might work in many of the states. If you don’t live in the United States, I wouldn’t advise it.
If you live in New Mexico, feel free to copy it and change the names. I would warn you about the “execution” or signing of the will. You have to sign in the actual presence of your witnesses. If you sign it by yourself, and then take it around to witnesses to sign afterwards, the will is not validly executed
Otherwise, your state may use different terminology (e.g. “Executor” instead of “Personal Representative” for the administrator of the estate) and have different rules for the execution (signing) of the will (all that legal-looking stuff at the end).
As for planning, notice that this will doesn’t describe any property at all. It’s all covered with generalities. You don’t need a list of stuff you own (though you could make one for your executor’s benefit, and put all the necessary documents in one safe place). What you really want and need to think about is (1) a list of the people you would want to be guardian for the kids, and (2) a list of people you would trust to handle the money-stuff.
In our case, it was fairly easy: my wife and I have four sisters, so we just had to talk to them and decide what order to put them in. Since only one of our four sisters has her own kids, she went at the top of the list. As for the money stuff, we listed two lawyers who are close friends.
LAST WILL AND TESTAMENT
haze and Mrs. haze
KNOW ALL PERSONS BY THESE PRESENTS that I, haze and I, Mrs. haze, being of sound mind and disposing memory do here by publish and declare this to be our last will and testament revoking any and all prior will and codicil either of us may have executed before this date.
A. We declare that we are each legal residents and domiciliaries of the State of New Mexico. At the time this Will was executed the signatory parties are married to each other. We declare that it is our express intention to create a joint will for the management of our estate affairs upon the death of either or both of us.
B. As used herein the possessive terms “my”, “I” and “our” shall refer to the possessions or to the directives of a deceased party to this Will, jointly or individually.
CHILDREN AND GUARDIANSHIP
We are the natural father and mother of two children, namely, haze Jr. No.1, born August 9, 1999, and haze Jr. No. 2, born December 26, 2000. We have no other natural or adopted children and no children who are deceased leaving surviving issue.
In the event that the parties decease leaving minor children it is the express directed that haze’s Sister shall be named the Guardian of any such minor children and shall serve in that capacity without the requirement of posting bond. In the event that haze’s Sister cannot or will not serve as Guardian of our minor children, we hereby expressly direct that haze’s Other Sister be named as Successor Guardian of any such minor children, and in like manner, direct that Mrs. haze’s Sister, be named as Second Successor Guardian of any such minor children,and in like manner, direct that Mrs. haze’s Other Sister be named as Third Successor Guardian; all to serve without the necessity of bond.
The Guardian shall also serve as the Trustee of the assets and income of the minor children and shall administer those assets in accordance with the directives of this Will or any applicable Trust regarding the management of the assets of minors. In the absence of any such valid and enforceable provisions the Guardian shall exercise his or her best discretion and judgment in managing the financial affairs of the minor children.
NOMINATION OF PERSONAL REPRESENTATIVE
In the event of the death of haze he hereby nominates and appoints Mrs. haze, his spouse, as his designated Personal Representative. In the event of the death of Mrs. haze, she hereby nominates and appoints haze, her spouse, as her designated Personal Representative. In the event that the designated Personal Representative of either party pre-deceases, is incapacitated or otherwise will not or cannot serve in the capacity of Personal Representative then haze’s Friend Who Happens to be a Lawyer is hereby nominated as Successor Personal Representative of the estate of either party, and haze’s Other Friend Who Also Happens to be a Lawyer is hereby nominated the Second Successor Personal Representative of the estate of either party. Any person nominated by this Will to serve as Personal Representative shall serve without the requirement of bond.
PERSONAL REPRESENTATIVE POWERS
A. All claims against my estate arising at or after my death and all taxes payable from my estate or by reason of my death shall be paid from my residuary estate without apportionment.
My Personal Representative shall have all the powers authorizes by the New Mexico Probate Code or the probate code of any jurisdiction in which an ancillary proceeding is required. Administration of my estate shall be informal and unsupervised.
B. The Personal Representative shall have the authority to use date of death and other deductions or valuations as may be available by state or federal law or IRS regulation that preserve the greatest tax advantage for the named beneficiaries of this Will. It is directed that all estate, inheritance and succession taxes payable by reason of my death shall be paid out of and be charged generally against the principal of my residuary estate, without reimbursement from any person.
C. The Personal Representative shall arrange for the payment of any burial, cremation or related expenses, costs of last illness and costs of probate so far as possible out of the residuary of my estate. My Personal Representative shall likewise take care to identify and pay all my just debts held at the time of my death.
DESCRIPTION OF ESTATE
A. I, haze, declare that my estate consists of my separate property and the community property I have acquired during my marriage to Mrs. haze. It is my intention to dispose of my property by means of this Will except for any property otherwise transferred, before or after the date of this Will, to fund a trust for the benefit of my surviving children or other persons.
B. I, Mrs. haze, declare that my estate consists of my separate property and the community property I have acquired during my marriage to haze. It is my intention to dispose of my property by means of this Will except for any property otherwise transferred, before or after the date of this Will, to fund a trust for the benefit of my surviving children or other persons.
A. I, haze, give and devise such of my personal and household property as I shall identify in a List, attached hereto for that purpose, to the persons named on that List, which shall be either in my handwriting or otherwise signed and acknowledged by me. I reserve the right to update and change my List at any time but declare that only the most recently dated List shall be administered as my directives.
B. I, Mrs. haze, give and devise such of my personal and household property as I shall identify in a List identified by my name and date of execution, attached hereto for that purpose, to the persons named on that List, which shall be either in my handwriting or otherwise signed and acknowledged by me. I reserve the right to update and change my List at any time but declare that only the most recently dated List shall be administered as my directives.
DISPOSITION OF ESTATE
A. I, haze, give, devise and bequeath all my personal and household effects and the like not otherwise effectively disposed of, such as jewelry, clothing, automobiles, furniture, furnishings, silver, books, pictures and artworks, and any other such personal property as may be in my possession or in which I retain a possessory interest at the time of my death, any real property or property interest including home or land equity or fee title to my wife, Mrs. haze if she shall survive me. If and only if my wife does not survive me I hereby bequeath all the property of my estate in any valid trust created for the benefit of my sons, haze Jr. No.1 and haze Jr. No. 2.
B. I, Mrs. haze, give, devise and bequeath all my personal and household effects and the like not otherwise effectively disposed of, such as jewelry, clothing, automobiles, furniture, furnishings, silver, books, pictures and artworks, and any other such personal property as may be in my possession or in which I retain a possessory interest at the time of my death, any real property or property interest including home or land equity or fee title to my husband, haze if he shall survive me. If and only if my husband does not survive me I hereby bequeath all the property of my estate in any valid trust I have created for the benefit of my sons, haze Jr. No.1 and haze Jr. No. 2.
We each give and devise any residuary estate, being all property real and personal, wherever situated, in which I may have any interest at the time of my death not otherwise effectively disposed of, to our surviving spouse, or in the absence of a surviving spouse, in trust for the benefit of our surviving children.
RETENTION AND DISTRIBUTION
A. If any of my estate is to be finally distributed to any person who is under the age of 21 years old, then that person’s share shall vest in that person but shall be distributed instead to my Trustee appointed herein, to be held IN TRUST, for the benefit of that person. My trustee shall pay such portion of that person’s share which my Trustee deems best, in the absolute discretion of my trustee, for the direct or indirect benefit of that person, and shall make final distribution of the balance of that person’s share to that person upon that person becoming 21 years old or if that person shall not reach that age then upon the death of that person to his or her heirs. Any income not expended shall be accumulated and added to principal.
B. No beneficial interest in either the income or principal of any trust established under the provisions of this will shall be subject to anticipation, assignment, pledge, sale or transfer in any manner, nor shall any beneficiary have the power to anticipate, encumber or charge that interest nor shall that interest while in the possession of my Trustee be liable for or subject to the debts, contracts, obligations, liabilities or torts of any beneficiary.
If any person directly or indirectly institutes, conducts or in any manner takes part in or aids in any proceedings to oppose the probate of this will or any codicils to this will, or to impair, invalidate or set aside any of its provisions, then that person shall receive the sum of One Dollar ($1.00) and no more.
FUNERAL AND MEMORIAL
We each direct that our Personal Representative make such provision for the disposal or our remains and provide for any such funeral, memorial, monument or ceremony that the Personal Representative deems to be in the best interests of surviving family.
This will, consisting of _____ pages, this included, was signed by the above-named testators in the State of New Mexico, as and for the testators’ will in the presence of us, who at the testators’ request, and in the testators’ presence, and in the presence of each other, have signed our names as witnesses. We believe the testators have reached the age of majority and are each of sound mind at this time.
__________________________________ residing at ___________________________
__________________________________ residing at ___________________________
SELF-PROVING WILL PROVISION
We, haze and Mrs. haze, the testators and __________________ and ____________________ the witnesses, whose names are signed to the attached and foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testators signed and executed the instrument as the testators joint last will and testament and that their signature was willing and done as their own free and voluntary act for the purposes therein expressed; and that each of the witnesses saw each testator sign and in the presence of the testators, at the testators’ request and in the presence of each other, signed the will as witness and that to the best of our knowledge the testators had reached the age of majority, was each of sound mind and under no legal constraint or undue influence.
STATE OF NEW MEXICO )
COUNTY OF BERNALILLO )
SUBSCRIBED AND SWORN TO before me on this the ____ day of ___________, 1999 by haze, Testator and Mrs. haze, Testator and subscribed and sworn to before me by _____________________ and ___________________ witnesses.
My Commission Expires: