Will FAQ

Isn’t there a Set Formula for What Goes Into a Will?

Not really. All of us have unique circumstances in our lives that resist easy, one-size-fits-all definitions. However, there are some clauses that are found in most wills. Here’s a very quick rundown of common elements of wills.

• Funeral expenses and payment of debts. Your debts don’t die with you; your estate is still liable for them, and your executor has the authority to pay them off if they are valid and binding. You can also forgive any debts someone owes you by saying so in this clause. As for funeral directions and anatomical donations, while you can put them in your will, be aware that the will might not be found or admitted to probate until after you’re buried. It’s best to put these in a separate document.

• Gifts of personal property. It’s important to identify carefully all recipients of your largesse, including their addresses and relationships to you. There are too many cases of people leaving property to “my cousin John,” not realizing that more than one person might fit that description.

Remember also that personal property can include intangible assets like insurance policies (for instance, if you own a policy on your spouse’s life, that policy and the cash value of the premiums paid into it can be passed on through your will), bank accounts, certain employee benefits, and stock options.

Finally, if you have several people whom you want to share in a gift, be careful to specify what percentage of ownership each will have. If you don’t, the court probably will presume that you intended the multiple beneficiaries to share equally.

You can save on taxes by using gifts wisely. This section of your will can be used to give gifts to institutions and charities as well as to people.

• Executors. By giving the executor authority to act efficiently, by saying that a surety bond will not be required and by directing that the involvement of the probate court be kept to a minimum, which is now possible in many states, you can save your family money. It helps to spell out certain powers the executor can have in dealing with your estate: to buy, lease, sell, and mortgage real estate; to borrow and lend money; and to exercise various tax options. If you run a business, be sure to give your executor specific power to continue the business—or enter into new business arrangements.  Texas allows for Independent administrations, so at Buckner & Cross, L.L.P. we are careful to provide for independent executors, to save the estate significant money.

• Gifts of real estate. Most people prefer that their spouses receive the family home. If the home isn’t held in joint tenancy, you should have instructions about what will happen to it in your will. If you die before you’ve paid off the mortgage on your house, your estate normally will have to pay it off. If you’re afraid this will drain the estate too much, or if you want the recipient of the house to keep paying on the mortgage, you must specify that in your will. If you haven’t paid off the family house, and you’re afraid your survivors can’t afford to, you may be able to buy mortgage-canceling insurance to pay it off.

• Residuary clause. This is one of the most crucial parts of a will, covering all assets not specifically disposed of by other parts of the will. You probably will accumulate assets after you write your will, and if you haven’t specifically given an asset to someone, it won’t pass through the will—unless you have a residuary clause that covers everything. (If your will omits a residuary clause, the assets not left specifically to anyone would pass on through the intestate succession laws; in technical terms, your estate would be partially intestate, with some portions passing as you specified in your will and some according to state law.) No matter how small your residuary estate seems at the time you write your will, you should almost always leave it to the person you most care about.

• Trusts. In a trust clause, you can set up a testamentary trust in your will, or have your will direct funds from your estate into a trust you had previously established (your will would then be a pourover will).

• Self-proving Affidavit. At Buckner & Cross, L.L.P., we include a self-proving affidavit in all of our wills, so that your heirs will not have to go and try to find the witnesses when your will is probated. We also provide witnesses when you come to execute your will.

How do I Make Gifts of Personal Property in a Will?

A tangible personal property memorandum or direction (abbreviated as TPPM) is a separate handwritten document that is incorporated into the will by reference, is dated, and contains lists of tangible personal property (e.g., jewelry, artwork, furniture) and the people you want the property to go to.

This means that the will says something like “This will incorporates the provisions of a separate Tangible Personal Property Memorandum . . . ” Then the TPPM is regarded as part of the will. Many states recognize the validity of such a signed instrument, including Texas. Some require it to be in existence at the time the will is signed and will not give effect to changes made after the will is signed. If you use a TPPM, it’s important to remember to make provisions for what happens to any of the property listed if the person who is in line to receive it should die before you do—and you neglect to adjust the TPPM accordingly before your death. Often, the reference in the will specifies that the gifts are to go to the recipients still living.

In addition, the reference in the will often states that if no TPPM is found within sixty days of the will maker’s death, that is conclusive evidence that it does not exist. This provision means that the estate can be settled in a timely manner, without waiting indefinitely for something that may never turn up.

You may also make specific gifts of your property in the body of the will itself.  Which approach you take is something that you should discuss with your attorney.

Where Should I Keep my Will?

Keep it in a safe place, such as your lawyer’s office, a fireproof safe at home, or a safe-deposit box. If you do keep your will in a safe-deposit box, make sure to provide that the executor can take possession of the will when you die. The easiest way to accomplish this is to add your executor to the list of persons who are authorized to open the safe deposit box.  And, make sure that they know where to find the key!  Also, keep in mind that some jurisdictions require a decedent’s safe-deposit box to be sealed immediately after death until certain legal requirements have been satisfied.

At Buckner & Cross, L.L.P., we keep a copy of your signed Last Will and Testament. (We only keep the original if you have asked us to do that.)  We cannot probate a copy of the will, unless we can “reasonably explain” what happened to the original will.  If you die in a fire at the house, or as a result of a tornado hitting your home, if we can’t find your Last Will and Testament, we can reasonably assume that the will was lost in the disaster.  However, if you die of natural causes and we are unable to find your will, we cannot probate the copy.  One of the ways that you can change your mind about your will is to destroy it.  So, if we can’t find your original, there is a presumption that you have destroyed your will because you changed your mind.  Therefore, it is very important for you to keep your will where it can be found!

Please read this article if you think someone has secretly hidden your loved one’s will.

What Other Estate Documents Should I Keep With the Will?

You should also keep a record of other estate-planning documents with your will, such as trust documents, IRAs, insurance policies, income savings plans such as §401(k) plans, stocks and bonds, and retirement plans.  You should also keep your other legal documents, such as your Advanced Directive (“living will”), power of attorney, medical power of attorney, pre-designation of guardian, and designation of agent to dispose of remains in a safe place that is easy for your designated assistants to be able to find them.

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.