A will is the legal document that specifies how a person wants to dispose of the real and personal property owned in his own name at the time of his death. Most mentally competent adults have the legal capacity to draw a will. But few persons are knowledgeable enough to do so properly. Only an attorney should draft a will and even most attorneys should not attempt to draw their own.
See our infographic: Death by the numbers
1. Introductory clause
Start with the introductory (exordium) clause, which should be the first paragraph in the will. The purpose of this preamble is to
(1) identify the testator, the person disposing of property at death;
2. Debts clause
The next clause usually pertains to the payment of debts, expenses, and costs. The purposes of this clause are:
(1) To state the source from which each debt will be paid. (This is an extremely important point because of the death tax implications. For instance, if a surviving spouse rather than some other beneficiary must pay debts, to that extent the marital deduction will be decreased and taxes may be increased. Furthermore, if the burden falls on the wrong person(s), the testator’s goals may not be met.)
3. Tax clause
The clause pertaining to the payment of death taxes can either be stated next or appear after the provisions disposing of property.
The purpose of the tax clause is to establish the source for the payment of the federal estate tax, the state inheritance and estate tax, and any federal or state generation-skipping transfer tax.
4. Tangible personal property clause
A clause pertaining to the disposition of tangible personal property is often next. The purposes of this clause are:
(1) to provide for who will receive personal property, and the terms under which they will receive it; and
5. Devises of real estate clause
The next clause pertains to “devises,” testamentary grants of real property. The purposes of the devises clause are:
(1) to specify which real estate is to be disposed of under the will and to dispose of that real estate, and
7. Residuary clause
The next clause is called the “residuary clause.” The purposes of the residuary clause are to:
(1) transfer all assets not disposed of up to this point,
8. Powers clause
The next clause is often one pertaining to the powers of the executor (and trustee if the will establishes a “testamentary trust,” a trust created at the testator’s death under the will). The purposes of the powers clause are to:
(1) give the executor (and trustee) specific power and authority over and above those provided by state law to enable the executor to conserve and manage the property, and
9. Appointment of fiduciaries clause
The appointment of the executor, trustee of any testamentary trust, and guardian of any minor child often comes toward the end of the will.
The purposes of the fiduciary appointment clause are:
10. Testator's signing clause
The next to the last clause in a will is typically the testator’s signing or “testimonium” provision. The purposes of the testimonium clause are
(1) to establish that the document is intended to be the testator’s last will,
12. Other clauses
There are, of course, many other clauses that should be considered in reviewing a will. Some additional points for the planner to check are:
(1) Is the federal estate tax marital deduction important? If so, consider that the Uniform Simultaneous Death Act, which applies in most states, presumes that the testator survives in the event of a simultaneous death involving the testator and a beneficiary. This would cause a loss of the estate tax marital deduction unless the will superseded state law by providing a “common disaster” clause. This provision makes the presumption that the testator’s spouse is deemed to have survived.