Ten Tips on Will Writing - ABA YLD 101 Practice Series

By Robin S. Cromer

One
Before you start, get your client to fill out a questionnaire. This satisfies the requirement that the client knows his or her assets and heirs - a prerequisite to making a valid will in most states. Attached is a sample questionnaire for your reference. (See Exhibit A). You should keep this on file in case the will is contested.

Two
Get your client's total estate value from the questionnaire. If the total value is over the amount excluded for federal and state estate taxes, advise your client that the estate could be subject to such taxes and a more comprehensive estate plan should be considered. 3. Discuss with your client the duties and responsibilities of the Executor ("Personal Representative"). Help your client choose a Personal Representative that can do the job and who lives close enough to the client to do it conveniently. Choose at least one backup Personal Representative in case the first choice is not available.

Three
Discuss with your client the duties and responsibilities of the Executor ("Personal Representative"). Help your client choose a Personal Representative that can do the job and who lives close enough to the client to do it conveniently. Choose at least one backup Personal Representative in case the first choice is not available.

Four
Put in a "smart tax clause" that instructs the Personal Representative to apportion taxes based on the asset value. This is discussed at length by Daniel B. Evans in his article "Tax Clauses to Die For," in the July/August 2006 Probate & Property Journal: http://www.abanet.org/abanet/common/login/securedarea.cfm?areaType=premium&role=rp&url=/rppt/mo/premium-rp/publications/magazine/2006/ja/Evans.pdf

Five
Authorize a Personal Property Memorandum in the Will (a handwritten signed list to bequeath personal property) if your state allows this, and tell your client how to use it. I always give the client a written instruction sheet with the Will (See Exhibit B).

Six
Give the Personal Representative the authority, in the Will, to sell property and to use discretion as to the terms of its sale. If you forget to give the Personal Representative this power, the Personal Representative will have to have a hearing in probate court in order to sell property. In general, you should draft the Will to give the Personal Representative broad powers to dispose of assets and to adjust bequests as deemed necessary.

Seven
After you list specific bequests, include a residue clause. Unless your client plans to die tomorrow, there is always a possibility that there will be additional assets at death.

As a corollary, always be ready to explain the work you do to colleagues, professionals, friends, or even a new person you meet in the real world. Short examples of your work are effective marketing tools. A lay person may not know what "employment litigation" is, but will know what you mean when you say "I handle lawsuits between employees and employers related to overtime pay."

Eight
Help your client think through some contingency scenarios. What if the client's spouse dies first? What if one of the client's children dies before the other? Plan for at least a few contingencies in the Will, because the client may not prefer the statutory plan.

Nine
Have the client name a Guardian for any minor children and name a backup Guardian as well, just in case.

Ten
Look at the probate code to make sure you have the Will executed properly with the proper number of witnesses, special acknowledgments that make the Will harder to contest, and other formalities such as notarization. Many state probate codes have sample acknowledgements that you should use.


EXHIBIT A

WILL QUESTIONNAIRE

You are doing a great thing by preparing your Will. This way you can be sure that your hard earned money and possessions go to the loved ones you choose. Please give us as much information as you can so that we can provide you with effective legal counsel. All information will be kept confidential. Our privacy policy and the attorney client privilege prevent us from disclosing your private information to anyone.

PERSONAL INFORMATION

  1. Full name:
  2. Address:
  3. Home phone:
  4. Work phone:
  5. Date of birth:
  6. Age:
  7. State of legal residence (place where you vote):
  8. Social security number:

FAMILY INFORMATION

  1. Marital status:
  2. Full name of spouse
  3. Full names, dates of birth, and gender of all children; also indicate whether they are adopted, stepchildren, or children from a prior marriage:
Full NameDate of BirthGenderAdopted, stepchild, previous marriage
    
    
    
    
    
  1. Have you ever been divorced or are you currently separated?
    If so, what was length of marriage?

ASSET INFORMATION

   Value
Do you own any real estate?Yes:No: 
Do you own any stocks or bonds?Yes:No: 
Do you have life insurance?Yes:No: 
  1. Please estimate the TOTAL worth of your estate (everything you own, including real and personal property, bank accounts, stocks and bonds, life insurance, pensions, and intellectual property such as copyrights or patents) Amount:$

PROPERTY DISPOSITION



  1. How do you want to leave your assets?
    Everything to one person:
    If you want to divide your assets among several people, please list these beneficiaries in your order of preference as well as the percentage
    or amount of your assets you would like them to receive.
NAME
PERCENTAGE or AMOUNT
1. 
2. 
3. 
4. 
5. 
6. 

 

  1. If you wish, please list alternate beneficiary(ies) who will inherit your assets in the event that none of the beneficiaries (named immediately above) survive you. Please list these alternate beneficiary(ies) in your order of preference as well as the percentage or amount of your assets you would like them to receive.
NAME
PERCENTAGE or AMOUNT
1. 
2. 
3. 
4. 
5. 
6. 

 

  1. The probate code provides that you can make a list of specific personal property bequests, such as jewelry, furniture, art collections, or vehicles, that you would like to leave to a specific person(s). We can include a form for this purpose in your Will package.
    Would you like this?       Yes                         No

EXECUTOR ("PERSONAL REPRESENTATIVE")
The Executor ("Personal Representative") is the person appointed by you in your Will to handle the paperwork and administration of your estate. This person will inventory your assets, pay debts and expenses from your estate assets, distribute your estate according to your Will, and submit an accounting to heirs and the Court. This person should be an individual that you trust implicitly, as well as a person you believe will faithfully carry out the responsibilities associated with being your Personal Representative. This person should be notified and agree to serve before being appointed.

  1. Full name of Personal Representative:
  2. City and state of the Personal Representative:
  3. Who are your second the third choices if the first choice Personal Representative has died before you or is otherwise unavailable to serve?

    1. City and state of the Personal Representative:

    2. City and state of the Personal Representative:

GUARDIAN FOR MINOR CHILDREN
If you die leaving your minor child(ren) with no surviving parent, your child(ren) will require a Guardian. Courts ordinarily honor the parent's choice of Guardian named in a Will. You can separate the physical custody and financial responsibilities of Guardians, if you choose.

  1. Full name of Guardian(s):
  2. Do you want the Guardian to handle physical custody and financial affairs for your children? If no, how do you want to divide the responsibility?
  3. Second choice of Guardian(s), if the first choice has died before you or is otherwise unavailable to serve:
  4. Do you want the second choice of Guardian to handle physical custody and financial affairs for your children? If no, how do you want to divide the responsibility?

OTHER CONSIDERATIONS

Living Will and Durable Power of Attorney for Healthcare:
A Living Will is a legal document that instructs medical personnel not to use artificial life support, or to discontinue its use, if you become terminally ill and are incompetent to make your own decisions.

A Durable Power of Attorney for Healthcare is a legal document that appoints someone to make healthcare decisions on your behalf if you are incompetent to make such decisions, even if the incapacity is temporary. A Durable Power of Attorney lasts for an indefinite time, but you can revoke it by following the appropriate procedure.

Because decisions related to your life and healthcare are so important, these documents must be legally correct and formally executed.
Are you interested in having a Living Will or a Durable Power of Attorney for Healthcare?      Yes      No

Who do you want to designate as your Attorney-in-Fact (person to make decisions on your behalf) for healthcare decisions?

Name:
Address:
Phone #:

Second choice as your Attorney-in-Fact for healthcare decisions, if the first choice has died before you or is otherwise unavailable to serve

Name:
Address:
Phone #:

Durable Power of Attorney for Property:
A Durable Power of Attorney for Property allows another person to sign documents and make decisions on your behalf. This document can be written with an expiration date so that if you are temporarily out of town someone can sign documents for you for a limited time. Alternatively, this document can be written as a permanent document without expiration so that if you are incapacitated because of a physical or mental illness another person can sign documents on your behalf. A Durable Power of Attorney lasts for an indefinite time, but you can revoke it by following the appropriate procedure.

Are you interested in having a Durable Power of Attorney for Property?      Yes     No

Who do you want to designate as your Attorney-in-Fact (person to make decisions on your behalf) for property decisions?

Name:
Address:
Phone #:

Second choice as your Attorney-in-Fact for property decisions, if the first choice has died before you or is otherwise unavailable to serve

Name:
Address:
Phone #:




EXHIBIT B

WILL INSTRUCTIONS

  • You have signed one original Will. The probate court requires your original Will be filed when you die. In an emergency, the probate court may accept a copy of your Will, but you should not rely on this. We will keep one copy of your Will on file at our office.
  • Keep your Will with your other valuable documents in a place that is safe from fire or water damage. Do not tear or mark on your Will as this may (or may not) be used as evidence that you meant to revoke your Will.
  • Tell your beneficiaries, heirs, and Personal Representative (Executor) where they can find your Will.
  • Your Will provides for you to make a Personal Property Memorandum. This is a handwritten or typed letter signed by you that lists any personal property, such as jewelry, furniture, family heirlooms, boats, or vehicles, and who you want the personal property to go to. You can change this letter as many times as you want without changing your Will. Keep this letter with your Will.
  • You can change your Will at any time, but you must have the changes properly witnessed and notarized. Please call us for help with any changes.

GENERAL DURABLE POWER OF ATTORNEY

  • You have signed original Powers of Attorney. A copy of the Power of Attorney is just as good as the original.
  • [We are recording an original Power of Attorney at the _______________ County Courthouse. You can go to the courthouse and get a new copy if you lose yours. It will be indexed under your name.]
  • A Power of Attorney is an important legal document that, generally, allows your Attorney-in-Fact to sign for you on any other legal document or to make medical decisions regarding your care. A Power of Attorney for Property may allow your Attorney-in-Fact to sell your house, handle your bank account, or make investments on your behalf. A Power of Attorney for Healthcare may allow your Attorney-in-Fact to make major medical decisions on your behalf and to have access to your medical records.
  • You can change or revoke (take away) your Power of Attorney at any time by following the appropriate procedure. We will be happy to help you with this if you need it.

YOUR ATTORNEY-IN-FACT SHOULD SIGN DOCUMENTS AS FOLLOWS: (ATTORNEY-IN-FACT'S NAME), ATTORNEY IN FACT FOR (PRINCIPAL'S NAME, i.e., YOUR NAME)

[EXAMPLE: Howard Rourk, as attorney-in-fact for Ellsworth Toohey. In this example, Howard Rourk is the attorney-in-fact, and Ellsworth Toohey is the principal.]

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