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Wills Overview

By: John Terry
Partner, Campbell Kyle Proffitt LLP

Considerations Common to All Wills

First, regardless of whether a person has a written will, they have a default will created by their own state’s legislature. The decision regarding to whom and in what percentage property will descend has been decided by the laws of intestacy. The state has also determined the individuals who have preference to serve as the administrator (known for the rest of this chapter as the “personal representative”) of the estate. Thus, the core purpose of having a lawyer prepare a will is to substitute the clients’ decisions for that of the state legislature.

Each state has its own technical requirements for the creation of a will. Typically, a will has to be in writing and witnessed. The number of witnesses varies from state to state. Additionally, whether a will must be self-proved varies from state to state. A will is self-proved when the witnesses and testator, under the penalties for perjury, sign an acknowledgment that the testator was of age and sound mind, signed voluntarily, and that the document was signed by the testator in the presence of the witnesses. If a will is not self-proved, then the submission of the will to probate must also include an affidavit from one of the witnesses or from another party who can verify the signatures.

One of my early mentors told me that drafting a will does not have to be the same as writing scientific formulae. It does not have to be hard. In fact, far more often than not, the best will is a will that is simple, clear, and concise.

Common Considerations in Structuring Trusts

The creation of a trust requires three elements: trustee property (corpus), a trustee, and a beneficiary. If the trustee’s duties are limited to act solely for one beneficiary, and that beneficiary is also the trustee, then the trust fails and the corpus becomes the property of the beneficiary. This concern often does not exist because the trust terms extend beyond just one person’s life. For example, if Sam Settlor establishes a revocable living trust with himself as trustee to benefit himself for life, there are still remainder beneficiaries of the trust after his passing. If there was just one remainder beneficiary who is one and the same as the trustee, then the corpus becomes the beneficiary’s.

Trusts are valuable estate planning tools in that they can be created for a great many purposes. The balance of this chapter will discuss several common trusts, their purposes, and a brief discussion of their core considerations. While it is not a necessary requirement of creating a trust, it is my practice to state the purpose of the trust. Stating the purpose not only provides guidance to the trustee in fulfilling its duties, it also provides the beneficiaries with an idea of what to expect from the trust.

A trustee can be an individual or an institution. All states that I am aware of have a trust code that provides a trustee with its default responsibilities and powers. If the settlor wants to use an institution as a trustee, each company has its own preferred language to add to the trust. The institution will be happy to provide the practitioner with its required and/or desired language to add to the instrument.

Best Practices for Structuring Trusts and Estates, 2015 ed.

This article is an excerpt from Best Practices for Structuring Trusts and Estates, 2015 ed. This excerpt was provided by Aspatore Law Books, part of Thomson Reuters. Aspatore books were originally created for a legal professional audience, but have since become popular with non-attorneys thanks to easy-to-understand writing and smart, real-world insights. You can find the entire book available for purchase on the Thomson Reuters Legal Solutions website by clicking the book title linked above.