Provisions addressed in a will
Published 12:00 am Wednesday, March 27, 2002
Property is not the only provision addressed in a will. Taxes, debts, personal household effects and cash bequests are also an important part of the document.
A will does not control what happens to your life insurance, pension, retirement or employee benefits. You must designate the person who is to receive the proceeds of your life insurance on a form provided by the insurance company. For a pension, retirement or other employee benefits, the employer supplies the form.
A will should contain provisions to address the following matters:
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Debts: Are your debts to be paid from assets in your estate? The will can direct payment of some or all of your debts. Alternately, the will can provide that the recipient of property is to pay any debt against the property. For example, if your residence is subject to mortgage, you may require the person receiving the residence to pay the balance of the mortgage.
Taxes: If your will does not contain a tax clause, then the person receiving property from your estate will pay any taxes due as a result of your death. Each recipient pays a share of the taxes based on the value of the property that individual receives. However, the will can direct payment of taxes by the estate out of cash or bank balances on hand.
Property: Property of all types may be distributed to beneficiaries named in your will. For example, if your name alone is on a deed to real estate, then the real estate passes at your death to the person named to receive it in your will. Other property, such as bank accounts, motor vehicles, stock and bonds in your name alone pass to those beneficiaries designated in your will. You need not list every item of property you own. Usually, your assets are described in general terms, including everything you now own or may acquire after the will is signed. Nevertheless, it is a good idea to specifically describe any real estate or personal items you are leaving to a named person.
Personal and Household Effects: There should be a specific clause in the will for your personal and household effects such as furniture, clothing, books, jewelry and appliances. You can refer to a separate writing that lists these items and the people who are to receive them. This separate writing is called a memorandum. In some states, the memorandum must exist on the date you sign the will. But the memorandum can be made or revised after you sign the will if it is entirely in your own handwriting and if you sign and date the end of the document.
Joint Tenancy Property: Property that is in your name and another person's name passes under your will only if you and the other owner are "tenants-in-common." That means you each own a half, undivided interest in the property. Your interest is undivided because you own half the property as a whole. In other words, it is divided up only in a legal sense, not physically or geographically. You may designate someone other than the tenant-in-common to receive your share of the property when you die. One exception is if you and your brother own an apartment building as joint tenants with rights of survivorship, your interest in the building passes automatically to your brother when you die. You cannot name someone else to receive the property. To determine whether property you own with another person is joint with rights of survivorship, check the title to the property. An "and/or" in the title to the property creates survivorship rights. The rule for saving bonds is similar. If you and another person own a U.S. saving Bond, the other person becomes the sole owner of the bond at your death.
Cash Bequests: In a will, you may make a gift of cash to a person or charity. The bequest can be for a specific sum of money or can be limited to a percentage of the estate. For example, if you want to leave $10,000 to your church or college and your total estate at the time you sign the will is $100,000, then the bequest to the church or college is 10 percent of the total. If before you die your estate shrinks to $50,000, the church's $10,000 share might be a greater percentage of your estate than you had intended.
One of the most asked questions about wills is "Can I disinherit a child or my spouse?" The answer is yes. In most states except Louisiana, you can disinherit your children. However, in most states you cannot disinherit your spouse.
Your will cannot be set aside simply because you leave nothing to your children or because you leave them unequal shares. However, if you make no provisions or limited provisions for your spouse, he or she can "elect against the will," taking a so-called dower share in the property.