Many wills are full of legal jargon. Fortunately, once you understand the terms, they’re not that complicated. Here’s what to look for when you’re an executor reading a will.
Most wills begin with basic information: the names of the will-maker’s closest family members. This makes it clear what’s meant by references in the will to terms such as “my children” or “my wife.” It also shows that the person made the will with close family members in mind—and that if they aren’t left any property, it wasn’t accidental.
The paragraph naming the executor often comes near the end of the will and names a first choice and one or more alternates.
Here’s an example:
I hereby nominate, constitute and appoint my beloved wife, Keiko Tanaka, to act as the Executor of this my Last Will and Testament. In the event that Keiko Tanaka shall predecease me or chooses not to act for any reason, I nominate and appoint Richard Kawamoto to act in her place.
Most wills state, either in the clause that names the executor or separately, that the executor is not required to post a bond. A bond is an insurance policy that protects the estate if the executor steals or squanders estate funds. If the will says no bond is necessary, the estate will save the cost of the policy.
A “specific gift” leaves specific items of property to specific beneficiaries, like this:
I give and bequeath to Anastasia Kern, should she survive me, all funds in my savings account, #48-9877A at First National Bank, Cincinnati, Ohio. I give and bequeath all of my personal effects and clothing to Matthew Porter, or if he should predecease me, then to James Hernandez.
Many wills contain no specific gifts. They simply leave everything to one person, or to several people to share equally.
Many people use terms such as “personal effects” or “furnishings” in their wills. Courts commonly define the term personal effects fairly narrowly, to mean items that someone wears or carries, or that have some “intimate relation” to the person. The term "personal property" is usually given its standard legal meaning, which is all property that isn’t real estate.
It’s rare, but sometimes people leave property subject to conditions--for example, “I leave $10,000 to Sue Ellen Murphy if she goes to college” or “I bequeath $10,000 to William Murphy if he stops smoking.”
These gifts can be nightmares for an executor. How long should the executor wait before concluding that Sue Ellen isn’t going to college or that Bill has kicked the habit? If Sue Ellen doesn’t get the money, who does?
If you run into such a provision, your best bet is probably to get all the beneficiaries together and try to agree on how best to fulfill the will-maker’s wishes. A probate judge will probably go along with your decision.
In some states it’s legal for people to refer, in their wills, to another document that lists tangible items of property and who is to inherit them. If there’s such a list, you’ll find something like this in the will:
I leave my personal property in accordance with a memorandum signed by me or in my handwriting, which I intend to leave at my death.
If the memorandum (which may take the form of a letter or list) is validly prepared under your state’s law, you’ll need to treat it as part of the will.
A gift of a certain amount of money, without a specified source, is called a “general” bequest or legacy. Here’s an example:
I give and bequeath to Charles and May Chao, or to the survivor of them, or if they should both predecease me, then to their daughter, Sara Chao, the sum of $10,000.00, it being my wish that such sum be used for the education of Sara Chao.
After any specific and general gifts, a will usually directs who should inherit the “residue” of the estate—that is, whatever’s left after the other gifts are made.
Here’s an example of a residuary clause:
I give the rest and residue of my estate to my beloved husband, Jonathan R. Gretly, or if he does not survive me, in equal shares to my children, Samantha Gretly-March and Louis M. Gretly.
If the will makes no specific gifts at all—a common situation—then the residuary clause disposes of everything that’s subject to the will.
If the deceased person left children under 18, and there is no surviving parent able to raise them, look for a will clause that names a “personal guardian” for the children. This is the person who will raise the children.
You may find a clause that sets up a trust to take effect at the will-maker’s death. A trust is an arrangement under which one person controls and manages property for another. Trusts created in wills are called testamentary trusts.
The most common kind of testamentary trust is one that a parent sets up for children, so there will be someone (the trustee) to manage property if the parents die while the children are still young. Here’s a clause creating a “family pot trust”:
If my husband does not survive me, I leave my estate to my two children, Madison Rose Moore and Jeremy Logan Moore, in equal shares. All property I leave to Madison Rose Moore and Jeremy Logan Moore shall be held in a trust. I nominate Angela C. McBride to serve as trustee of the trust. If Angela C. McBride is unable or unwilling to serve as trustee, I nominate Louis Ferrer to serve in her place.
Wills generally go on to set out the terms of the trust: how long it is to last, what the money can be used for, and so on.
Another way to leave property to children is to make gifts under a law called the Uniform Transfers to Minors Act (UTMA), which has been adopted in every state but South Carolina and Vermont. You may find a clause that looks like this:
I leave $10,000 to my son Raymond Kieshner, as custodian for my granddaughter Mia Elaine Kieshner, under the Iowa Uniform Transfers to Minors Act.
This means that the money will be owned by the granddaughter, but managed for her by her father, the “custodian” of the money. Under Iowa law, the custodianship will end when Mia turns 21. In a few states, UTMA custodianships end when the beneficiary turns 18; in some others, it can last as late as age 25.
If the person who wrote the will also created a separate living trust to avoid probate, the will may contain a “pour-over” clause, directing that assets passing under the will be automatically put into (“poured over” to) the trust. Then the successor trustee will distribute them according to the terms of the trust document.
Here is a pour-over clause:
I give all my residuary estate, being all real and personal property, wherever situated, to which I may have any interest at the time of my death not otherwise effectively disposed of, to the trustee under a trust agreement dated January 5, 20xx, to be added to the trust property and held and distributed in accordance with the terms of that agreement.
An important part of the executor’s job is to pay the estate’s debts. The will may tell you whether you are supposed to use a specific source of funds to pay the debts, or to pay them out of the general asset pool. Many wills, however, don’t address this issue.
Some wills contain a no-contest clause, designed to discourage beneficiaries from contesting the will in court. The clause states that if a beneficiary sues, trying to throw out all or part of a will, that person gets nothing.
Here’s a no-contest clause:
If any beneficiary under this will contests this will or any of its provisions, any share or interest in my estate given to the contesting beneficiary under this will is revoked and shall be disposed of as if that contesting beneficiary had not survived me.
If you face the very unusual situation of simultaneous deaths—that is, the deceased person and his or her spouse died at the same time—look for a simultaneous death clause. Generally, the clause says that the will-maker is deemed to have survived the other person, so that property does not pass to that person. The point is to make sure the property passes under the deceased person’s will, not the deceased beneficiary’s.