Important parts of your will
By David Walker, Attorney at Law
I’ve had the opportunity over years of law practice to read a lot of wills that people bring in for probate. It is sometimes surprising what clauses people include in their wills or leave out.
Using the wrong language, or living out an important part, can drastically change what happens to your estate. Here are some examples.
The residuary clause says what is to happen to the part of your property that you do not leave to specific beneficiaries, or if a bequest under your will lapses because the beneficiary did not survive you. The “residuary” of your estate is the part left after the bequests given to specific beneficiaries.
If there is no residuary clause, then the residuary part of your estate goes to your heirs at law. Not everyone wants their heirs to get a share of their estate, and one purpose of a will is to control who gets what. So, the lack of the residuary clause can result in part of your property going to persons other than those you wanted to give it to. In the worst case, if you have no surviving heirs, the lack of a residuary clause could cause your property to go to the state.
A basic clause that is sometimes left out is one that will allow your executor or personal representative to serve without being bonded and without having to file inventories with the court. It is common to excuse the executor from these duties, especially if your named executor is a person close to you whom you trust. Omission of this clause is surprisingly common, and can result in extra work for your executor at the time of probate.
Another clause that people sometimes wish to include in their will is an ”in- terrorem" clause, commonly known as a no-contest clause. These generally provide that if a beneficiary contests the will, they lose their bequest. One common situation where these are found is when a person who expects a significant bequest gets a small one, or is left out altogether.
Those ”in- terrorem" clauses may not be valid unless the will states what is to be done with a person’s bequest if the will is contested. Also, it is worth considering to not entirely disinherit someone who might contest, or to give them a bequest that is not something that they are afraid to lose. Otherwise, a person who is disinherited has nothing to lose by contesting the will.
Sometimes people forget to think about the future, where minor children or grandchildren are to receive a bequest. If the trustee is not named, a guardian may have to be appointed. And, a minor beneficiary will receive their bequest in full when they reach the age of majority unless the will provides for a delayed receipt of the bequest. This can be done in the will by naming a trustee who will hold the money for the benefit of the minor until he or she gets older, when the minor will hopefully be more responsible.
It is always a good idea to consult an attorney about your estate plan, in order to make sure all your bases are covered.
David Sinclair Walker, Jr. P.C.
-Admitted in GA and D.C. -UGA Law ’76 -Certified Mediator -Georgia Bar No. 731725
Published in the Gwinnett Citizen - 2014