The Practical Will

he law has scrutinized and worked with the drafting of wills for so many hundreds of years that a standardized procedure has developed. A will identifies beneficiaries and designates which assets they shall receive. To be valid, the will must be signed by the testator in the presence of witnesses.

It sounds simple. Yet there is a steady stream of cases through the courts to litigate every aspect of this simple document. The execution of a will is critical from the choice of witnesses to the number of original wills that are signed. The storage of a will in a safe-deposit box becomes a decision that varies based on state laws. As for a will's content, it is clear that ambiguities must be avoided so that there is not litigation over beneficiaries or assets that no longer exist. Even routine "boilerplate" provisions can backfire and should not automatically be inserted into wills. Let's examine these areas from a practical point of view.

Self-Proving Wills

The ideal witnesses are healthy enough to be available to testify after the testator's death, and unbiased enough to be credible witnesses. The witnesses should have no interest in the estate.

As a practical matter, having the signatures of the witnesses notarized at the time of the execution to provide a "self-proving" will is clearly a preferred approach. This generally makes it unnecessary to have witnesses testify, and therefore facilitates the probate process.

Holographic Wills & Ademption

A will that is written entirely in the hand of the testator is not recognized in every jurisdiction. Where recognized, there are often ambiguities in these layman's documents. In a recent Montana case, for example, a jeweler and city councilman who often traveled out of state always left a sealed envelope with his father before each trip and then collected it after his return. It was understood that the envelopes contained confidential information, including combinations to his safe, alarm codes, and instructions concerning the disposition of his property. On his final trip at age 44, the jeweler suffered a stroke. His note left his home and the contents of a safe to his companion JoAnn as follows:

"Dear Dad,

If something happens you will get $20,000 city life policy please bury me by mom. Please give JoAnn all but $5,000.00 in safe. That will pay rent/bill for 2-3 months so you/her can close down business. If she wants business let her have it! You are welcome to take a ring and watch for yourself. Let Becky pick one ring, also Cathy, and, Amber. If they want earrings/necklace too that's ok! Let JoAnn choose any 2 of my rings, if you want or Dan/Don want one of my rings ok, after JoAnn chooses."

The house and business were sold to pay for the jeweler's care after the stroke. At his death, about $70,000 of the proceeds remained in the jeweler's bank account. The jeweler's family persuaded one court that the deceased had a casual relationship with JoAnn and that the specific bequests of the home and business were adeemed when sold, causing the proceeds to go to the jeweler's family.

This was reversed for the following reasons: "The significance of the disposition Michael outlined for his estate is that he chose JoAnn to be the beneficiary of his major assets. His father and his sister each received much more modest sums in life insurance, and remaining family members received only one ring apiece. Based on this distribution of assets, in addition to evidence in the record indicating that Michael intended to make sure JoAnn was well taken care of in the event of his death, and the presumption in favor of finding a general devise, we conclude that the devise to JoAnn in the holographic will was a general one."

Although the holographic will failed to designate the residue of the estate to JoAnn, the court noted as follows: "Clearly, this holographic will does not adhere to all the formal conventions of a will. However, in choosing to recognize holographic wills as valid, Montana has made clear its preference to seek guidance from the intent of the testator, rather than relying on complex procedural rules when such reliance would frustrate the testator's wishes." Holtz v. Deisz, Supreme Court of Montana, 68 P3d 828 (April, 2003).

Joint & Contractual Wills

On April 12, 1978, Orlando and Marie Osborne executed a joint will. After the death of both spouses, the four Osborne children were to share the estate. But in 1981, Marie Osborne executed a holographic will that benefited only her two daughters. After both Osborne parents had died, the two Osborne daughters probated the 1981 holographic will. But the two Osborne sons successfully argued that the 1978 joint will was contractual and invalidated the 1981 will.

On appeal, the Court found the will's use of plural pronouns "we," "us," and "our," as evidence of the intent to treat the property as one estate. The joint will also made a comprehensive distribution of assets at the death of the surviving spouse. The contractual nature of the will was upheld on appeal. Estate of Osborne, No. 06-02-00167-CV., Court of Appeals of Texas (June, 2003).

Duplicate Original Wills

Although it is possible to create multiple originals of a will, the standard practice is to have only one original will. The reason for this is based on the presumption of revocation that applies when an original will is lost. Where duplicate original of a will exist, the executor will have to produce both copies to rebut the presumption of revocation.

In Texas, a 1964 ethics opinion identified a violation of ethical canons where an attorney drafted a will that said, "This will is executed in duplicate-originals, one of which duplicate-originals is retained by X, Attorney at Law, Oldtown, Texas." Such a statement was construed as a solicitation of professional employment.

Meanwhile, in Georgia, the very existence of duplicate originals is in question. In an article entitled, No "Duplicate Original" Wills, Probate Judge William Self, II noted that Horton v. Burch, 267 Ga. 1 (1996), concludes that only the first will signed is an original (at least in Georgia) and all others are just copies.

Safe Depositories

In general, the safe-deposit box should be used for important papers and valuables that can be obtained in due course such as original deeds, stock certificates, leases, contracts, birth certificates, adoption papers, medals, rare collectibles, jewels, rare photographs, etc.

As for wills, the bottom line is that the executor of a will should have easy and early access to the original will. In states where co-renters, family members, and executors have access with a key or combination, the safe-deposit box may be the best place for a will after all.

Yet certain states, such as Pennsylvania seal a safe-deposit box upon the death of its owner to allow tax authorities to assess the value of any assets. In such states, clients are advised to keep an original will in a safe, fireproof place that is accessible to the executor. Similarly, anything needed in an emergency should not be in the box.

Attorneys who draft wills generally keep copies of the wills they draft on file. Some attorneys also provide fireproof facilities and store original wills, but most retain only copies. Alternate executors must also be able to gain access to the original will in case the primary executor is unable to settle the estate.

Will Boilerplate

The routine text of many wills consists of boilerplate that gets recycled through many generations of documents. Sometimes boilerplates rust through, i.e., some of these provisions have the potential to backfire as circumstances change over time. Here are several examples:

"All debts to family members are forgiven."
A provision this broad is suspect to begin with. Another example would be, "Pay all debts without apportionment." Clauses like these may only make sense in certain estates. For instance, it would make sense when the estate is relatively large and there are various loans to family members that are inconsequential. It may also make sense if there are three or four siblings and a parent has loaned some of them funds based on need and doesn't choose to even things up by demanding payment at death. But circumstances change. Ten years later, what loans to family members are outstanding? Now there may be one very large loan to only one of the four siblings, so there is a huge benefit to only one of the four. In that scenario, debt forgiveness is inequitable to the other heirs.

"The residue of my estate to my cousin Frank."
Here also, circumstances change significantly over time. At the time the will was written, the testator anticipated having his $7-million estate distributed to his wife and children and anticipated that a relatively small residue of $100,000 would remain available for cousin Frank. But 20 years later, the estate may have more assets and fewer beneficiaries and cousin Frank could end up with half the estate, or far more than was intended.

"My executor is to be held harmless."
This may make sense when a small estate is being handled by a family member. However, time may alter this fact pattern as well. If a much larger estate is being handled by a paid executor, the testator may prefer to hold an executor accountable rather than harmless.

Practical Documents

The executor who approaches estate settlement should have the benefit of an unambiguous will that is available when needed. But there are other practical instructions that can be provided besides a will. Here are several that can be enormously helpful:

BURIAL INSTRUCTIONS take the guesswork out of the most emotional decisions that must be made in the aftermath of a death.

A SAFE-DEPOSIT BOX INVENTORY in the hands of the family or the executor takes the mystery out of what is in the box, and therefore removes the pressure of getting into the box to find burial instructions or anything else that may be missing.

AN ASSET LOCATION LIST is one of the most useful tools an executor can have. It should communicate not only WHAT assets are owned by a decedent, but WHERE they are, how much they are worth, and any other pertinent information.

PERSONAL PROPERTY DISTRIBUTION LIST can eliminate squabbles over family memorabilia. A note can resolve a lot of questions. Example: "I have promised my rocking chair to my daughter and my shotgun to my brother Bill and instruct my executor to keep my promise."

INVESTMENT RECORDS on the purchase price and date of assets can establish values for capital gains tax purposes. This can avoid problems in the event of a tax audit.

Finally, note that checklists are always helpful, both to laypersons serving as executors and professionals who are drafting and executing a will. A checklist is not only a means of not overlooking routine but important steps, but also can provide proof that the professional followed his or her customary steps and procedures in a particular case.