Estate Planning | II. Basic Estate Planning Documents

The Basic Documents that are usually used with an Estate Plan are:

  • Wills
  • Side Letters of Instruction
  • Powers of Attorney for Property
  • Durable Powers of Attorney for Health Care
  • Living Wills
  • Advance Medical Directives
  • Do Not Resuscitate Orders

A will is a legal document that gives the testator (will-maker) the opportunity to control the distribution of his property at death which will avoid his state's intestacy laws. When a person dies without a valid will, the person has pass away intestate. While a person who has a valid will is said to die testate.

Types of Wills

  • Holographic Wills - Handwritten wills that must be dated and signed by the testator, and does not generally have to be witnessed.
  • Nuncupative or Oral Wills - Dying declarations made before sufficient witnesses. Not valid in most states
  • Statutory Wills - Generally drawn by an attorney and must comply with the statutes for wills of the domiciliary state. They usually require the signature of the state's required number of witnesses and generally must be notarized.

A living will is a document detailing an individual's last wishes regarding sustainment of life. This document should be prepared in advance to clearly state the client's wishes and to avoid the need to seek court approval for the use of life sustaining measures.

A will may be invalid under state law if:

  • The decedent did not comply with the testamentary requirements of the domiciliary state at the time of execution of the will
  • The decedent moved to another state of domicile and failed to update his will to meet the new state law requirements (however, if the will is valid in a previous state of domicile, then it may be held to be valid in a new domicile)
  • The decedent did not satisfy the necessary requirements to execute a will.

Common Clauses in Wills

  • Introductory clause - Identify the testator
  • Declaration clause
  • Bequest clause
  • Residuary clause
  • Appointment of executor clause - Identifies the executor and any successor executor. This clause also has the power to waive the surety bond requirement and may give the executor the option to be paid for services rendered or to decline compensation.
  • Guardianship clause
  • Tax-appointment clause
  • Attestation clause - Witness clause that is a provision at the end of the will that is signed by at least two qualified witnesses.
  • Self-proving clause - The notary signing a declaration that he witnessed the testator and witnesses the signing of the will.

Other Clauses

  • Simultaneous death clause
  • Survivorship clause
  • Disclaimer clause
  • Contingent legatee clause - Either per capita ("by the head") or per stirpes ("split-the-stripe")
  • No-contest clause - discourages disappointed heirs from contesting the will by substantially decreasing or eliminating a bequest to them if they file a formal, legal contest to the will.

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