Putting together a Last Will

If you choose to write your own Last Will there are some things to know. Yes, you can write your own Last Will. But if it is not done right it will not stand up in probate court, and the wrong people may end up inheriting. That said, it is usually better to have a Last Will than nothing at all. If you die leaving a spouse and children, and the spouse is the parents of those children, they get the first $100,000 of your estate and half the rest while the children split the other half. If instead you have no spouse, and are estranged from one or more of your children, just know that without a Last Will they are all still treated equally. No matter what your relationship was like, and no matter who you talked to about cutting them out. You have to follow through in writing. 

Start with the assumption that everyone you want to include will be alive or in business (in the case of a charity). If you want to give a set amount of money, keep it small. For example: $1,000 to John Smith Dog Rescue. If you want to give more, do not assume that what you have when you die will be the same as what you have now. It might be more or less! In that case, use percentages. For example: Two Percent of my estate to John Smith Dog Rescue but never more than $50,000. 

Next, assume anyone might die or go out of business. Usually people want everything to their spouse first, and if the spouse died first then everything goes to the children in equal shares, per stirpes. Per stirpes means through the legal bloodline. So if one of the children also died already, their share automatically goes to their biological or adopted children. Step children are not included in “per stirpes” unless you say they should be. You can also cut out adopted children by specifically saying that is what you mean to do. 

You do not have to choose “per stirpes.” You could say if my child died before me their share will go to their spouse. That is unusual, because even if you like your son or daughter in law they might remarry, and now your family’s money may go to support their new spouse and stepchildren. You could say if my best friend isn’t here to get the money I left for them then their share goes to another friend, or a charity instead. 

In all cases you should have a “residue” clause. This clause says what happens to assets that you didn’t assign to anyone. It is a catchall, and very important. Recently I heard about a case where there was no residue clause. The deceased had said they wanted nothing to go to their kids. Charities got most of the money, but there was money unassigned. It can’t go to the charities because the Will doesn’t say so. It can’t go to the kids. So it will probably go to the State as unclaimed property!

Choose your Executor. This is the person who has to find all your assets, gather them into the estate, clean out your house and get it sold, pay off your debts, file your final tax returns, and get the inheritance out to your beneficiaries. Many people choose the oldest child by default. Personally I think you should choose whoever is going to find the time for the work, and is usually pretty good with paperwork. I do not see this as an honor. It is a job. The people not selected should count their lucky stars. 

Finally, have the document witnessed. In Connecticut you need two witnesses and a notary. They all need to see you sign, in person. We do not use e-notaries at this time. Ideally you should also have the witnesses then re-notarized on what is called a Self Proving Affidavit, which is useful because in future years if the Last Will is contested you will not have to find them and bring them to court to testify. 

Attorney Halley C. Allaire is principal in the law firm of Allaire Elder Law, a member of the National Academy of Elder Law Attorneys, Inc., with an office at 271 Farmington Avenue, Bristol, (860) 259-1500, or on the web at www.allaireelderlaw.com. If you have a question, send a note to Attorney Halley C. Allaire and your question may be discussed in a future column.