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The Basic Terms Of A Will (Part 1)

by | Mar 17, 2015 | Estate Planning |

This week’s article covers the basic content of a Will*

The Preamble: Most wills have a “preamble” (or introduction), which refers to the Testator** (person making the will) being of sound mind, and revoking all prior Wills. The statement about “being of sound mind” is not an absolute; if there is proof later that the testator was not mentally competent at the time, the Will is not considered valid.

The statement of revoking all prior Wills shows the testator’s intent to have the Will he/she is signing take priority over any past Wills. Of course, if the most current Will is later proved to be legally invalid, the next most recent valid Will becomes effective, and the Testator’s property will be distributed accordingly.

My Will form contains a description of marital status and names of spouse and children in the preamble; this is not required, but I find it to be useful and informative. It also eliminates the possibility that the Testator “forgot” to include a child in the Will, since all of his/her children are specifically named in the preamble.

Appointment of An Executor: The next term in a Will is the appointment of an Executor***, who is the person the Testator names in the Will to handle the estate when the Testator dies. The Executor can be a spouse or other relative, but I recommend that the named Executor be able to handle finances, as well as people!

Also, it is important to name an alternate Executor, in the event that the first person named either dies before the Testator, does not want to serve as Executor, or does not qualify.

Expenses and Debts: The next section of my Will form covers expenses of last illness, funeral costs, and expenses of the estate. These expenses must be paid prior to any distribution to the named beneficiaries.

The Property Distribution: The most important section of the Will covers the distribution of the Testator’s property. First, the Testator can list specific items which will be given to specific persons; this is optional. Second, the Testator can give the balance of (or all) property to a named beneficiary or beneficiaries. Normally, when a Testator is married with children, all property is given to the spouse; if the spouse dies prior to the Testator, then normally, the Testator would leave all property to the children in equal shares, “per stirpes”. “Per stirpes” means that if a child dies prior to the parent/Testator, that child’s children will inherit the child’s share, and divide it equally. For example, a Testator has 3 children, and leaves all property to the children in equal shares, per stirpes; 1 child predeceases the Testator, leaving 2 children. The surviving 2 children inherit 1/3 each; the Testator’s 2 grandchildren split the remaining 1/3 share, so that each inherits 1/6th.

Next week’s post (Part 2) will cover the remaining basic terms of a Will.

*These comments will focus on New Hampshire law.

**The female is referred to as the Testatrix, but to keep things simple, all further references to Testator cover both males and females.

***The female is referred to as the Executrix, but again, I will refer to Executor to cover both males and females.