Your Will Explained
Will
Your will is the foundational document of your estate plan. A well designed will reads like a set of instructions. The document identifies the creator of the will, known in legalese as the “testator,” their family, who should manage their affairs when they die and how they want their property distributed, among other things.
The key players in a will:
Testator: The person creating the will; that is you.
Testator’s family: The family members of the person creating the will
Beneficiaries: The people or organizations receiving property from the testator
Personal representative or Executor; The person managing the testator’s affairs after they die.
Guardian: If the testator has minor children, they will want to appoint a person to care for the children if the testator dies while the children are still minors.
This article breaks down the Willingworth Will, what each section does, and what it means for you.
My Family
This section names your family members, including a spouse or partner and children, if they have them.
Personal Representative or Executor
You appoint the person to carry out the terms of your will and administer your estate. This person is usually a spouse, partner, close family member or trusted friend. Depending on the state of residence, this person is called a “personal representative” or “executor.” Because most states now use the term “personal representative.” we will refer to this person as the personal representative.
Most states require that the personal representative make an inventory and report to the court. In this will, the testator waives the requirement that the personal representative make an inventory and file it with the court. This is to minimize the administrative burden for your personal representative, Note, however, that any interested party under the will may request an inventory. Additionally, the will does not require your personal representative give a bond to the court, but there is a provision that allows your personal representative to request to be bonded Being bonded gives your personal representative a level of insurance for their actions, assuming that they were not intentional or grossly negligent.
It’s important to note that if you are the personal representative of someone's estate, you have personal liability for your actions. If you were not to carry out the terms of the will, you could be sued by the heirs and be subject to damages.
Debts and Expenses
The section calls for the payment of all lawfully enforceable debts. It's important to note that many of your debts are extinguished upon death. In order for those debts to be lawfully paid, the creditor must file a claim against the estate, and that claim must be approved by the court.
If you are the personal representative of someone's estate, you should follow the guidelines and require any person or company claiming to be a creditor to file a verified claim against the estate with the court.
In many states, creditors have six months after the will has been admitted to probate in order to file claims. If they do not file the claim within six months, then their debt is no longer lawfully enforceable.
We are compiling a list of state specific requirements. Check back regularly as we update these articles to reflect this.
Personal Property
The term personal property means household furniture and furnishings, automobiles, books, jewelry, art objects, hobby equipment and collections, wearing apparel, other articles of household or personal use or ornament. Personal property also includes airline miles and points, hotel points earned through reward programs associated with credit cards or other similar programs in which you were enrolled at the time of death.
By law, personal property also includes coins and cash that you have on hand. It's important to note that if you do not want those items to be included in personal property, your will state that those particular items are not to be included as personal property, and are to be distributed elsewhere in the will.
The memorandum of disposition of personal property allows you to identify specific pieces of person property and a specific person to whom that property should be given.
Specific bequests are gifts of specific sums of money or property (that is not personal property). For example, giving your favorite charity $1,000 would be a specific bequest.
Residuary Estate
The residuary or “rest of the estate” is everything else you own. It is common that, if you are married, in a civil union or domestic partnership, your surviving spouse or partner be named as the recipient for the rest of the assets of the estate. You may, of course, name any one or more persons related or unrelated to you.
Contingent Trust for Children
A trust for your children (if you have children) is included in the will to deal with the rare circumstance that both parents die when their children are minors and can’t inherit property outright.
It’s important to note that, generally, persons under the age of 19 are not allowed to enter into contracts. Therefore, minor children holding property is very cumbersome and will involve a court-appointed a guardian and conservator, who then supervises that minor child in the management of the assets and files periodic reports with the court.
Our solution is to establish a contingent trust for your children in your will. This provides that the estate of the parents will be held as one big pot, or lump sum. Out of that pot of money, the trustee will provide for the health, education, support, or maintenance of each of the individual children.
This pot trust configuration simulates how most parents manage resources for their children if the parents were still living. When the youngest child attains the age that you indicate in your will, trust assets are divided into equal shares for the children.
This trust also provides for special disability provisions should a child become disabled and be eligible for government benefits. The trust places limitations on how much the trustee can give to that child, so that the government benefits are not disqualified.
Finally, this trust contains a provision for limitations on distributions to a child who is suffering from drug, alcohol, or other types of addictions. The trust allows the trustee to pay directly for the health care of the child, but not to give the child money for use to fuel its addiction.
Appointment and Qualifications of the Trustee
Your will provides that a bank or similar entity be the trustee, and not any persons. One of the reasons why we've done this is because a bank will be bonded by its state banking authority or other regulatory body in charge of that bank. If there is some misconduct on behalf of the administration of the bank, then the beneficiaries will actually have someone to make a claim against.
If an individual were the trustee and were to inappropriately administer the trust, the beneficiaries would also have a claim against that person, but it is unlikely in most circumstances that any claim against an individual trustee will ever be collected.
Digital Assets
Digital assets are a new phenomenon in the world of estate planning. This provision allows your personal representative the ability to deal with your online accounts, social media, Amazon, and other shopping and financial institutions with which you have online accounts.
General, Administrative, and Interpretive Provisions
The first provision details the presumption of who survives whom in the event of an accident where it is difficult to determine which of the two people died first.
The second provision contains a definition of “descendants,” which includes any persons born before or after the signing of the will, or persons adopted by any child or descendant.
The third provision deals with ancillary probate which only comes into play if you own property in another state.
The fourth provision deals with partial invalidity, where if one part of the will is determined to be invalid, it does not destroy the integrity of the entire will.
Signature Pages
Standard Signature Page
The second-to-last page of the will is where you sign your will in the presence of two witnesses. These three signatures are necessary for the will to be properly executed.
Self-Proving Will Affidavit
The last page of the will is a “self-proved affidavit.” This is used if you wish to sign your will, along with the two witnesses, in front of a notary public.
It’s important to note that while this is not necessary, a self-proved affidavit is helpful when the will is taken to the probate court to be admitted to probate. Having all signatures notarized at the time that the will is signed eliminates the need for a hearing and bringing the witnesses personally to the court to testify that yes, they did in fact see you sign your will.
The most important thing is to properly sign your will in the presence of two witnesses, who have no financial interest in your estate! We know it is difficult to round everybody up and go down to the bank to find a notary public. That’s why we have provided you with two options: standard and self-proving. Remember, an unsigned or improperly signed will does not get the job done