Sample Basic Will (Annotated)

There is no standard, legally foolproof will. State laws vary, and so do the needs of people making wills. Every will must comply with state laws.

Your will must comply with applicable law, whether a simple will or the most complex one. Otherwise, the probate court will find the will invalid during the probate process and estate administration, or it will lead to a will contest.

The following sample will should give you an idea of what a will looks like. This article explains why certain language is in the last will and testament. See FindLaw's Making a Will section for additional articles.

"I, Tess Tatrix, residing at 1 Wilthereza Way, any town, any state, declare this to be my Will, and I revoke any and all wills and codicils I previously made."

The opening sentence should clarify that this document intends to be your will. It should provide:

• Your name
• Your place of residence
• A revoking of any previous wills and codicils (amendments to previous wills)

Revoking a previous will can help avoid a court battle if someone should produce an earlier will.

Be sure to include these items in your opening sentence of a basic will.

ARTICLE I: Funeral Expenses & Debt Payment

"I direct my executors to pay my enforceable unsecured debts and funeral expenses, the expenses of my last illness, and the expenses of administering my estate."

By law, debts must be paid before other assets are distributed. This clause gives your executor the authority to pay the funeral home, court costs, and hospital expenses. Using the term "enforceable" prevents creditors from reviving debts you are no longer obliged to pay. These debts are usually those discharged in bankruptcy. The term "unsecured" prevents a court from interpreting this clause to mean that your estate must pay off your mortgage or other secured debts that you probably don't want immediately paid off.

Note: in some states, the executor is required by law to pay enforceable unsecured debts. In these states, this clause is unnecessary and may create problems.

ARTICLE II: Money & Personal Property

"I give all my tangible personal property and all policies and proceeds of insurance covering such property, to my husband, Tex. If he does not survive me, I give that property to those of my children who survive me, in equal shares, to be divided among them by my executors in their absolute discretion after consultation with my children. My executors may pay out of my estate the expenses of delivering tangible personal property to beneficiaries."

The language in this article gives your personal property to your spouse. If you want particular items to go to other people, you should list them. These items may include:

• Heirlooms
• Jewelry
• Professional equipment
• Any other personal property

The named beneficiaries will be in line to get the property according to your wishes. You should list the person you want them to go to in a separate clause.

For example, you could write: "I give my Beatles albums to my friend William Shears." Please note that Article II excludes those items. Some people will use separate clauses for legacies (disposition of money) and bequests (disposition of tangible personal property).

The important clause accounts for the possibility that your spouse will die first. The clause on insurance policies means that if some property you owned was destroyed, your heirs or family members will receive the insurance proceeds, not the mangled car.

ARTICLE III: Real Estate

"I give all my residences, subject to any mortgages or encumbrances thereon, and all policies and proceeds of insurance covering such property, to my husband, Tex. If he does not survive me, I give that property to __________________."

This section allows you to make a plan regarding real property. Most people want their spouse to keep the family home. In some states, particularly community property states, it's sometimes preferable to leave your residence to your spouse in a marital trust.

ARTICLE IV: Residuary Clause

"I give the rest of my estate (called my residuary estate) to my husband, Tex. If he does not survive me, I give my residuary estate to those of my children who survive me, in equal shares, to be divided among them and the descendants of a deceased child of mine, to take their ancestor's share per stirpes."

Usually, the residuary clause begins, "I give all the rest, residue, and remainder of my estate...."

Let's face it: lawyers are afraid to change tried-and-true formulas. For decades, legal documents have never used one word when a half-dozen would do. However, a plain-English form will also work. This clause covers any property you own or are entitled to that wasn't covered by the preceding clauses.

ARTICLE V: Taxes

"I direct my executors, without apportionment against any beneficiary or other person, to pay all estate, inheritance, and succession taxes (including any interest and penalties thereon) payable by reason of my death."

Some estates are required to pay taxes. So, this clause outlines your preferences for paying these taxes. Such taxes can include:

• The federal estate tax, applicable to large estates
• Death taxes or inheritance taxes under state law
• Income tax for the estate

People who use a living trust make a common mistake. They often make the beneficiary of the estate different from the people benefiting from the trust. This problem also exists when there are significant specific gifts. The residuary beneficiaries differing from the specific gifts' recipients can lead to trouble.

In such cases, those paying the taxes do not receive the most property. This arrangement can unfairly saddle some beneficiaries with the whole tax bill. At worst, this provision can even bankrupt the estate.

The goal should be for the taxes to be paid by those who benefit from gifts. Often, a provision apportioning taxes to taxable transfers ensures each recipient of a taxable gift pays their fair share. You can use additional language to apportion credits.

ARTICLE VI: Minors

"If under this will any property shall be payable outright to a person who is a minor, my executors may, without court approval, pay all or part of such property to a parent or guardian of that minor, to a custodian under the Uniform Transfers to Minors act, or may defer payment of such property until the minor reaches the age of majority, as defined by his or her state of residence. No bond shall be required for such payments."

This clause gives your executor discretion to administer any gift to a minor appropriately. The "no-bond" language seeks to save the estate money.

ARTICLE VII: Fiduciaries

"I appoint my spouse, Tex, as Executor of this will. If he is unable or unwilling to act, or resigns, I appoint my daughter, Ellie Mae, and my son, Jethro, as successor co-executors. If either co-executor also predeceases me or is unable or unwilling to act, the survivor shall serve as executor. My executor shall have all the powers allowable to executors under the laws of this state. I direct that no bond or security of any kind shall be required of any executor."

In this article, you name the executor. This individual will handle your estate administration. This person is sometimes called a personal representative.

If you set up a trust agreement in the will, you could also name the trustees in this clause. The "bond or security" clause is designed to save the estate money.

ARTICLE VIII: Simultaneous Death Clause

"If my spouse and I shall die under such circumstances that the order of our deaths cannot be readily ascertained, my spouse shall be deemed to have predeceased me. No person, other than my spouse, shall be deemed to have survived me if such person dies within 30 days after my death. This article modifies all provisions of this will accordingly."

This clause helps avoid the time-consuming problems that can arise if you and your spouse die together. This might happen in an accident. Your spouse's will should contain an identical clause.

It seems contradictory to have two wills, each directing that the other spouse died first. But this allows the estate plan set up in each will to go forward as you planned.

The second sentence prevents legal complications if someone dies between the time you die and the time of the estate's division. Instead of passing through two probate processes, your gift to a beneficiary who dies after you would go to whomever you would have wanted it to go had the intended beneficiary died before you. Most such gifts go into the residuary estate.

ARTICLE IX: Guardian

"If my husband does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children my uncle Ernest Entwistle. He shall have custody of my minor children and shall serve without bond. If he does not qualify or for any reason ceases to serve as guardian, I appoint as successor guardian my cousin Kevin Moon.

This section can be used to express your thoughts on a guardian. You can also use this section to outline your wishes for a conservator if you are responsible for someone who cannot care for themselves. This could be an elderly person or a family member with special needs. You would simply modify the language to fit your situation.

I have signed this will this ____ day of ____, 20___ .___________________(legal signature)

SIGNED AND DECLARED by Tess Tatrix on______ to be her will, in our presence, who at her request, in her presence and in the presence of each other, all being present at the same time, have signed our names as witnesses.

___________________(signature)Blair Witness______________________________________Address

___________________(signature)I. Witness______________________________________Address

Self-Proving Affidavit

STATE OF _____________

COUNTY OF _____________

Each of the undersigned, Blair Witness and I. Witness, both on oath, says that:

The attached will was signed by Tess Tatrix, the testator named in the will, on the ___ day of ___, 20__, at the law offices of Lex Juris, 5440 Orfite St., Geo, Washington.

When she signed the will, Tess Tatrix declared the instrument to be her last will.

Each of us then signed his or her name as a witness at the end of this will at the request of Tess Tatrix and in her presence and sight and in the presence and sight of each other.

Tess Tatrix was, at the time of executing this will, over the age of eighteen years and, in our opinions, of sound mind, memory, and understanding and not under any restraint or in any respect incompetent to make a will.

In our opinions, Tess Tatrix could read, write, and speak in English and was suffering from no physical or mental impairment that would affect her capacity to make a valid will. The will was executed as a single original instrument and was not executed in counterparts.

Each of us was acquainted with Tess Tatrix when the will was executed and makes this affidavit at her request.

___________________(signature)Blair Witness______________________________________Address

___________________(signature)I. Witness______________________________________Address

Sworn to before me this_______ day of _______, 20______.

___________________(signature and official seal)

Notary Public

This affidavit should help prevent any disputes over the will. It should also help address allegations that the testator experienced undue influence in drafting the will.

Do You Have a Will? Get Started Today by Talking to an Estate Planning Attorney

Writing a valid will is one of the most important things you can do for your loved ones. It allows your estate to have a smooth probate process and avoid will contests.

You may also choose an estate plan that allows your estate to avoid the probate process.

It's important to note that a will is just one part of a comprehensive estate plan. You should consider other basic estate planning documents such as:

• Power of attorney
• A living will and health care directives
• A revocable living trust
• A testamentary trust

An attorney can also help you evaluate whether you're making the most out of beneficiary designations. They may help reduce the value of your estate. For example, the following accounts can pass outside of probate when you name a beneficiary:

• Life insurance policies
• Retirement plan accounts
• Brokerage accounts
• Bank accounts

If you have questions, you'll probably want to speak with a local estate planning attorney. They can help you with a new will, ensure the proper revocation of any prior will, and otherwise provide guidance on your estate plan.

Get the ball rolling today. Contact a local estate planning attorney for assistance with wills and trusts.

ARTICLE III: Real Estate

"I give all my residences, subject to any mortgages or encumbrances thereon, and all policies and proceeds of insurance covering such property, to my husband, Tex. If he does not survive me, I give that property to __________________."

Most people want their spouse to keep the family home. In some states, particularly community property states, it's sometimes preferable to leave your residence to your spouse in a marital trust.

ARTICLE IV: Residuary Clause

"I give the rest of my estate (called my residuary estate) to my husband, Tex. If he does not survive me, I give my residuary estate to those of my children who survive me, in equal shares, to be divided among them and the descendants of a deceased child of mine, to take their ancestor's share per stirpes."

Usually, the residuary clause begins "I give all the rest, residue, and remainder of my estate...." because lawyers are afraid to change tried-and-true formulas, and for decades, legal documents never used one word when a half-dozen would do. However, this plain-English form will also work. This clause covers any property you own or are entitled to that somehow wasn't covered by the preceding clauses.

ARTICLE V: Taxes

"I direct my executors, without apportionment against any beneficiary or other person, to pay all estate, inheritance and succession taxes (including any interest and penalties thereon) payable by reason of my death."

One common mistake by people who use a living trust as well as a will is to make the beneficiary of the estate different from the people benefiting from the trust. The same problem exists when there are significant specific gifts and the residuary beneficiaries are different from the recipients of the specific gifts. In such cases those paying the taxes are not those who receive the most property, an arrangement that can unfairly saddle some beneficiaries with the whole tax bill, and at worst can even bankrupt the estate. The goal should be to see that the taxes are paid by those who benefit from gifts. Often, a provision apportioning taxes to taxable transfers is used to make sure that each recipient of a taxable gift pays his or her fair share. Additional language is sometimes used to apportion credits.

ARTICLE VI: Minors

"If under this will any property shall be payable outright to a person who is a minor, my executors may, without court approval, pay all or part of such property to a parent or guardian of that minor, to a custodian under the Uniform Transfers to Minors act, or may defer payment of such property until the minor reaches the age of majority, as defined by his or her state of residence. No bond shall be required for such payments."

This clause gives your executors discretion to make sure any gift to a minor will be given in a way that's appropriate to his or her age. The "no-bond" language is intended to save the estate money.

ARTICLE VII: Fiduciaries

"I appoint my spouse, Tex, as Executor of this will. If he is unable or unwilling to act, or resigns, I appoint my daughter, Ellie Mae, and my son, Jethro, as successor co-executors. If either co-executor also predeceases me or is unable or unwilling to act, the survivor shall serve as executor. My executor shall have all the powers allowable to executors under the laws of this state. I direct that no bond or security of any kind shall be required of any executor."

If you set up a trust in the will, you could name the trustees in this clause as well. The "bond or security" clause is designed to save the estate money.

ARTICLE VIII: Simultaneous Death Clause

"If my spouse and I shall die under such circumstances that the order of our deaths cannot be readily ascertained, my spouse shall be deemed to have predeceased me. No person, other than my spouse, shall be deemed to have survived me if such person dies within 30 days after my death. This article modifies all provisions of this will accordingly."

This clause helps avoid the sometimes time-consuming problems that occur if you and your spouse die together in an accident. Your spouse's will should contain an identical clause; even though it seems contradictory to have two wills each directing that the other spouse died first, since each will is probated by itself, this allows the estate plan set up in each will to go forward as you planned. The second sentence exists to prevent the awkward legal complications that can ensue if someone dies between the time you die and the time the estate is divided up. Instead of passing through two probate processes, your gift to a beneficiary who dies shortly after you do would go to whomever you would have wanted it to go had the intended beneficiary died before you did. Most such gifts go into the residuary estate.

ARTICLE IX: Guardian

"If my husband does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children my uncle Ernest Entwistle. He shall have custody of my minor children, and shall serve without bond. If he does not qualify or for any reason ceases to serve as guardian, I appoint as successor guardian my cousin Kevin Moon.

I have signed this will this ____ day of ____, 20___ .

___________________
(legal signature)

SIGNED AND DECLARED by Tess Tatrix on______ to be her will, in our presence, who at her request, in her presence and in the presence of each other, all being present at the same time, have signed our names as witnesses.

___________________
(signature)

Blair Witness

___________________

___________________
Address

___________________
(signature)

I. Witness

___________________

___________________
Address

Self-Proving Affidavit

STATE OF _____________

COUNTY OF _____________

Each of the undersigned, Blair Witness and I. Witness, both on oath, says that:

The attached will was signed by Tess Tatrix, the testator named in the will, on the ___ day of ___, 20__, at the law offices of Lex Juris, 5440 Orfite St., Geo, Washington.

When she signed the will, Tess Tatrix declared the instrument to be her last will.

Each of us then signed his or her name as a witness at the end of this will at the request of Tess Tatrix and in her presence and sight and in the presence and sight of each other.

Tess Tatrix was, at the time of executing this will, over the age of eighteen years and, in our opinions, of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a will.

In our opinions, Tess Tatrix could read write and speak in English and was suffering from no physical or mental impairment that would affect her capacity to make a valid will. The will was executed as a single original instrument, and was not executed in counterparts.

Each of us was acquainted with Tess Tatrix when the will was executed and makes this affidavit at her request.

___________________
(signature)

Blair Witness

___________________

___________________
Address

___________________
(signature)

I. Witness

___________________

___________________
Address

Sworn to before me this_______ day of _______, 20______.

___________________
(signature and official seal)

Notary Public

Do You Have a Will? Get Started Today by Talking to an Estate Planning Attorney

Writing a valid will is one of the most important things you can do for your family and loved ones, since it allows your estate to bypass the costly, time-consuming, and often contentious probate process. If you have questions, you'll probably want to speak with a local estate planning attorney. Get the ball rolling today by contacting a local estate planning attorney.