An executor not only must find any will executed by the decedent (the "testator") and file it with the court but also will likely need to make sense of the will. Wills may be written in a variety of ways, but they typically contain certain types of provisions.
A will may begin with a statement about the testator’s name and address. It might also include the names of the testator’s spouse, children, or grandchildren. In addition to identifying these names, this section will help the reader of a will define the categories that may appear farther down in the will, such as "my children" or "my husband."
If a spouse or child is left out of the will, a court may look at the testator’s description of their family members to determine whether the exclusion is intentional. A court may infer that the exclusion was intentional if the individual’s name appears here.
Naming the Executor
A will may name an executor and possibly an alternative executor (also called a "successor executor") or co-executor. Some states use the term "personal representative" rather than executor. If a will does not name an executor, the probate court will appoint one. The will may also state whether or not the executor will be required to post bond with the court. A bond is essentially insurance on the estate to protect it from an executor who steals or squanders funds.
Gifts of Property
A will usually includes specific gifts of property. For example, the will may state, "I leave my collection of antique furniture to my daughter, Louise Zuk," or, "I bequeath my photo albums to my wife, Emily Harris, or if she should predecease me, then to Louise Zuk." A gift of money that does not note the specific source is sometimes called a general bequest, such as "I bequeath $5,000 to my grandson, Henry Harris." These gifts commonly come from the residuary estate.
Groups typically include members who were born after the will was written but not after the testator died, unless the will states otherwise. There is an exception for children conceived before the testator’s death but born after death (but reproductive technology may complicate this exception).
Gifts may also be left to groups or classes of people instead of one person. For example, the will may state, "I leave my jewelry to my children." If the clause does not include the names of the children, it may be debatable who is included in the group. Does this group include a child whom the testator gave up for adoption? Does it include step-children? Another part of the will may define the word "children," but it may not. State law may define who is meant by the word "children" in a will if the will itself does not define the term. An experienced probate lawyer may be helpful in determining how a group of people should be defined under state law. A probate court will look at the intentions of the testator as well as state law to define a group if necessary.
A testator may have drafted a personal property memorandum. This is a document that lists the testator’s tangible personal property, along with the specific person or people whom they want to inherit it. The will should mention the testator’s personal property memorandum, but the memorandum may not need to be signed in front of a witness to be properly executed. Personal property memorandums are legally binding in most states.
A will usually cannot affect assets that pass outside it, even if a testator names a specific beneficiary in their will. The most notable exception is Washington’s "superwill" statute, but other states may allow a testator to revoke beneficiary designations in a will under certain circumstances. A probate attorney practicing in the applicable state may be able to offer advice about conflicting provisions.
The Residuary Estate
Regardless of whether a will gifts any specific or general property, it will most likely contain a clause leaving the whole estate or the remainder (the "residue") of the estate to a specific person or people. For example, a clause gifting an entire estate may read, "I leave my entire estate to my wife, Emily Harris. If my wife predeceases me, I leave my entire estate to my two children, Louise Zuk and Leonard Harris, in equal shares." A clause gifting whatever is left of the estate after the specific and general gifts are made, also called the residuary estate, may read, "I leave the rest and residue of my estate to my wife, Emily Harris. If she predeceases me, I leave the rest and residue of my estate to my two children, Louise Zuk and Leonard Harris, in equal shares."
The residue of the estate may also include any property that was originally left to a specific beneficiary but for whatever reason cannot be delivered to that beneficiary. For example, a gift left to a beneficiary who died before the testator may become part of the residuary estate if no alternative beneficiary was provided. To determine whether this is the case, the executor will want to look at the specific language of the gift, as well as the state’s lapsed gifts laws. Of course, a residuary clause does not cover non-probate property.
There may be a clause indicating guardians for minor children, if any. If a will names a "personal guardian" for a child under the age of 18 when the testator died, that person will be responsible for raising the child if that child’s other parent is not still living. The court will usually approve the personal guardian named in the will unless someone initiates guardianship litigation. If a will names a "property guardian" for a child, that person will be responsible for managing the child’s inherited property unless that property is covered by another arrangement.
Testamentary trusts are trusts created by a will. The clause will indicate who will benefit from the trust (the beneficiary or beneficiaries), who will manage the trust (the trustee(s)), and how the trust will be administered. The clause may read, "The property inherited by my children, Louise Zuk and Leonard Harris, under this will shall be held in a trust for them. William Zheng shall serve as the trustee of the trust. If William Zheng is unable or unwilling to serve as trustee, Mikayla Zuk shall serve as trustee."
Uniform Transfers to Minors Act (UTMA)
The Uniform Transfers to Minors Act (UTMA) allows a trustee to appoint a custodian to manage property left to a minor child. Most states define a "minor child" for UTMA purposes as an individual under the age of 21. A UTMA clause may read, "I leave $10,000 to Leonard Harris. These funds shall be managed by William Zheng, as custodian for Leonard Harris, under the Uniform Transfers to Minors Act." Every state has implemented a form of the UTMA except for South Carolina. The custodian will follow the rules of the applicable state’s UTMA to manage the property for the minor child.
For definitions of terms specific to probate law, visit Justia’s Probate Glossary.
Pour-over clauses go hand in hand with living trusts. A pour-over clause will state that all assets passing under the will must go into the trust. A trustee, rather than an executor, is responsible for trust assets. The clause may read, "I leave the remainder of my estate to the trustee of the Axel Harris Revocable Living Trust dated May 29, 2021. This gift, devise, and bequest shall be added to the trust property and held and distributed in accordance with the terms of the trust." Assets that fall under a pour-over clause will still go through probate, but they will likely be less valuable assets and may be eligible for small estate procedures.
If there is no pour-over clause, the assets will be distributed according to the terms of the will or state law, even if they are in conflict with the terms of any trust.
Simultaneous Death Clauses
In rare cases, a simultaneous death clause may appear in a will to ensure that property passes under the decedent’s will rather than the beneficiary’s will if the beneficiary dies at the same time as the decedent. The will may state that the testator shall be deemed to have survived the beneficiary so that property may be awarded to the alternative beneficiary.
A no-contest clause deters individuals from contesting a will by preventing them from inheriting under the will if they sue and lose. A no-contest clause may read, "If any beneficiary under this will contests this will or any of its provisions, that beneficiary shall not be entitled to inherit any property under the terms of this will, and any share or interest in my estate given to the contesting beneficiary under this will shall be disposed of as if that contesting beneficiary had not survived me." Some states do not enforce no-contest clauses, at least against immediate family members.