What Goes In A Will? (Part 2 of 2)

The previous article covered some of the basic terms of a Will; this article will complete the discussion of basic Will terms.

Guardian for Minor Children: If you have children under the age of 18, you can appoint a guardian in your will to care for them if you die before they reach legal age. This is called a "guardianship of the person" who would be responsible for the personal welfare of a minor child, in contrast with a "financial" guardian. The guardianship appointment is only a suggestion to the Court as to who you would want to act as guardian; the Court will give strong preference to the deceased parent's wishes, but the Judge has the final decision for the appointment.

Trust for Minor Children: You can include a Trust for Minor Children provision in your Will; this Trust provision allows you to specify the age upon which any minor children can access the property that they inherit, so that they will not be able to "spend" their money foolishly when they are not mature enough to handle it. When you include this type of Trust provision in the will, you will also appoint a Trustee to handle the inheritance (sort of a "financial guardian" for the children's money). It is often better to include this provision in a separate Trust, which is funded through the Will; howevr, it is perfectly acceptable to create a Minor's Trust in your Will.

Simultaneous Death Provisions: Although it is very unlikely, family members can die in a "common" accident or disaster. In those situations, there may be no way to prove who died first; this is a significant problem, since a beneficiary must "survive" the Testator (person making the Will) in order to inherit. In 1999, New Hampshire law was changed to provide specific ways for deciding who is deemed to survive in a "common" accident or disaster, and therefore who will inherit. If this sounds unfair, it isn't; under New Hampshire law, in order to inherit under a Will,a beneficiary must survive a testator by at least 120 hours. Also, if property is held jointly with rights of survivorship (JTROS), and there is no proof as to who died first, the property passes in equal shares to the co-owners' respective estates. This actually results in 2 estates; however, for spouses who are joint property owners and whose children are all from that marriage, we normally include a Will provision that creates a presumption that one or the other legally "survives", so that the property passes only through 1 estate.

Intentional Omissions: This clause allows you specify any persons you want to exclude from claiming a share in your will. There is no need to name potential beneficiaries unless they are part of your bloodline; as discussed in a previous article, although you can disinherit your children, you can omit your spouse from your will, but he/she will still be entitled to a "legal share" of your estate. The Intentional Omissions clause is often used to omit family members who are receiving (or are likely to receive) public benefits such as state welfare or Medicaid, and who would be disqualified by receiving an inheritance.

Executor's Powers: This section explains in detail the Executor's powers. Although an Executor's powers, by law, are very broad, it is wise to provide the Court with specific powers that the Executor can have, such as the power to sell real estate without the prior approval of the Court. New Hampshire has adopted the Uniform Trustees' Powers Act, which lists standard powers conferred on a Trustee; my will form incorporates those Powers.

Definitions: The final provisions of my Will form include definitions of legal terms used in the Will. Even though legal terms are defined by "law", it is helpful to the Court to know, for example whether or not the Testator intended for a beneficiary to receive real estate subject to a mortgage, versus free and clear.

In the next blog entry, we will cover other estate planning ocuments.

Copyright 2014-Darlene M. Daniele

Disclaimer: The information in this article is not intended as a substitute for legal advice.

Salem Legal Services, LLC represents individuals of New Hampshire and Massachusetts, including (NH) Salem, Manchester, Nashua, Concord, Derry, Laconia, Exeter, and Rockingham, Hillsborough, Merrimack, Strafford, Belknap and Grafton counties; (MA) the Merrimack Valley and North Shore communities of Haverhill, Lowell, Worcester, Boston and Middlesex, Essex, Suffolk, Norfolk and Worcester counties