Common Will Provisions: A Primer

Common looking people are the best in the world: that is the reason the Lord makes so many of them.

- Abraham Lincoln

When you sit down with your attorney to talk about writing a new will or (if you’re really on the ball) re-doing your old one, you typically discuss the special language that is required to make your goals happen. What doesn’t get discussed as much are the provisions that are necessary – or at least very, very beneficial – for every will. Check out these common will provisions and see what they bring to your will.

Executor:

“I nominate my son, John Doe, as Executor of this my last Will and Testament. I further direct that no bond or other undertaking be required for his faithful performance of the duties of my Executor.”

By choosing who will act as your executor, you make it easy for your family or heirs to determine which of them is responsible for managing your estate. The executor oversees your assets until the court authorizes distribution to your heirs. Because this is a “fiduciary” position, many states require that the executor be protected by a third party’s promise to compensate the heirs (called a bond), but most wills waive this requirement.

Personal Property Memorandum

“It is my present intention to dispose of items of tangible personal property in the form of specific bequest(s) under the terms of this Will by a writing executed or to be executed by me in accordance with Iowa Code Section 633.276. In the event a distributee identified in said writing predeceases me, then the specific bequest to that specific distribute shall lapse and shall pass along with the residue of my estate under the terms of the following articles.”

This clause allows you wait to decide who will inherit your grandmother’s china, your father’s baseball card collection, or that photograph of the family dog. By reserving the right to list which of your heirs will receive certain items of personal property, you give yourself the ability to change your mind without needing to revise your will every time you make a decision. It is important to note that this power only extends to personal property and not to land or cash, investments, or other intangible items.

Simultaneous Death Clause

This clause takes many forms. One that I frequently use is:

“In the event that my wife and I shall die under circumstances where it cannot be determined which of us died first, it shall be conclusively presumed for all purposes of this, my Last Will and Testament, that my wife predeceased me.”

Another might be:

“If my husband does not survive me by thirty days, then it shall be conclusively presumed for all purposes of this, my Last Will and Testament, that my husband predeceased me.”

The end result is the same, however. Both of these clauses are intended to prevent a “double taxation” of your estate at your death. Imagine if you died within seconds of your spouse. The transfer of your estate into your spouse’s hands would occur as of the moment of your death, with your spouse then transferring those assets into the hands of your kids. Practically, everything ends up with your kids, but technically it was owned by your spouse first. Depending on the estate tax picture at your death, your share of the estate might be taxed once when it passes to your wife and again when it passes from your wife to your kids.

Note: Currently, this is not possible because a spouse inherits free of estate tax. However, estate tax laws change, so it’s always a good idea to account for possible pitfalls.

Guardian

“In the event it becomes necessary to have a guardian of the person appointed for any of my children, I nominate Jack Dough and Jane Dough, or the survivor of them, of Nowheresville, Iowa.”

For those of you who have minor children, it is always a good idea to name the individuals you would like to have care for your children after your death. By specifically naming a guardian, you eliminate the need for opening a guardianship with the court and avoid conflict among your heirs as to who should take care of your kids.

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Lawyer Joke of the Day:

Five signs you need a new lawyer:

2. During the trial you catch him playing Angry Birds on his cell phone.