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"Provisions That Should Be In Every Last Will And Testament"



Section 4: "Provisions That Should Be In Every Last Will And Testament"

There are several provisions, which should be in every Last Will And Testament even though they are not required by law to make a Will legal. These provisions will save you time and money and save your heirs from potential problems.

1. First, your Will should contain a "Residuary Clause". A lot of people think in terms of what property they have today and who they would want to receive their property if something happened to them today. They have a difficult time thinking of what they may acquire in the future. And of course, none of us know what property we may have in the future. To solve this problem and to make sure that all of your property is distributed by your Will, your Will should have a Residuary Clause. For example: "I give, devise, and bequeath all of the rest and residue of my estate to ..." This means that everything that you have not already covered, either specifically or generally, in your Will (anything left out of your Will) will be distributed to the loved ones that you name in this clause. Without a Residuary Clause, your Will may distribute only a part of your estate and the rest of your estate would be distributed according to state law.

I have seen this problem pop up several times. The most notable was the case of a gentleman I will call Jim. Jim had a family by his first wife and a second family by his second wife from whom he was also divorced. Jim made his Will giving specific property to his children by his first wife and specific property to his children by his second wife. His Will did not have a Residuary Clause. After he made his Will, Jim sold one home and bought another home. He did not change his Will. When Jim died, his children from the two wives received their respective properties, but the new home was left out. We had to bring a legal action to sell the home and distribute the proceeds according to state laws because his Will did not mention the new home, either specifically or generally. This cost Jim's heirs attorney fees, court costs, and sales cost.

2. Second, every Will should name a substitute or secondary beneficiary(ies). Just as we do not know when something will happen to us, we do not know when something will happen to our heirs and beneficiaries. If a beneficiary dies before you, then the gift you made to the beneficiary ceases to exist. Without a named substitute and depending on your Will, the property will be distributed either according to your Residuary Clause or according to state law.

Most people that I have talked to tell me that if "X" dies before them, then they want "Y" to have the property. To solve this problem, we name a substitute beneficiary in their Will. For example: "Should 'X' not survive me, then I give, devise, and bequeath ... to 'Y'..."

Naming a substitute or secondary beneficiary will also help prevent you from having to make another Will. For instance, your Will says that certain property is given to "X", but should "X" not survive you, then the property is given to "Y". "X" dies before you. The gift to "X" ceases to exist, but the substitute gift to "Y" is valid and enforceable. You do not need to make another Will.

This ebook is for general information only and may not be applicable to your situation. Talk with a lawyer licensed in your state.

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