Common Will Provisions

Provided you meet the legal requirements for making a will, there is no set limit as to how long or how short your will must be. The sky really is the limit. Usually, however, most wills will probably contain provisions concerning:

• funeral and burial instructions
• debt payment directions
• tax payment directions
• payment of estate administration expenses (e.g., costs of probate, legal fees, and executor's fees)
• dispositions of property
• legacies or gifts to specific individuals or a general class of individuals (e.g., testator's children)
• minimizing the impact of estate taxes
• appointment of the estate's executor and the extent of the executor's powers
• "simultaneous death" provisions and other survivorship rights when the order of the testator's and beneficiaries' deaths become an issue
• coordination with trust provisions
• guardianship for minors or other dependents
• disinheritance of relatives (if you so choose, and only to the extent allowed under state law)

Keep in mind, though, that simpler is often better. Unless there is an actual need for a particular provision, don't weigh your will down with excess legal language. Again, as long as it meets the legal requirements and meets your needs, you don't gain anything by making a 30 page will.

The corollary to the above rule is that you should read and know what every provision of your will does. Some legal boilerplate language can have serious consequences to your beneficiaries. With real estate, for example, you don't want to create a situation where the land you leave your beneficiaries is worthless because you inadvertently limited the property rights of the land in your will (e.g., by leaving a conservation easement to the local government.)

It is extremely important to understand the provisions that detail what should happen if you and a beneficiary die at the same term or the beneficiary predeceases you. The order of death can have momentous consequences for the estates of a husband and wife. Most wills for a married couple cannot a "simultaneous death" provision. For example, the husband's will states something to the effect that "if Wife survives the husband by more than xx number of days, all property passes to her. If not, then all property passes to the children." The wife's will has the exact some language, but with his name in the clause instead of hers. This is great if both the husband and wife want the same beneficiaries to receive the estates assets. But, in real life, this often is not the case...and it is important that you draft your will accordingly. The following example illustrates the importance of the "simultaneous death" clause.

Example Jules, age 70, and his second wife, Irene, age 71, were involved in an automobile collision. Jules was pronounced dead at the scene. Irene was taken to the hospital, where she died a few hours later. Neither had a will, so neither could have any (posthumous) say in how the property was divided. Jules had two children by his first marriage, which Irene has raised and regarded as her own since they were only toddlers when she married Jules 45 years ago. He and Irene had no children and Irene had no children of her own. By operation of law, when Jules died, all of his assets passed to Irene. When Irene died a few hours later, all of the couple's assets passed to Irene's nearest living relatives: two elderly aunts who Irene had not seen in over 20 years. The children were disinherited because there was no "simultaneous death" provision to ensure that the "right" family members inherited.