COMPLETE WILL #2: MARRIED TESTATOR
A) Entire estate to spouse
B) Contingent (alternative) specific gifts to children (in event spouse predeceases
C) Remainder (residue) to children in equal shares
D) Simultaneous death clause
E) Exoneration clause – liens or encumbrances on any bequeathed property to be paid
out of residuary estate so that legatee receives the gift free and clear of all liens and
Comments to Form
This simple Will form provides that the testatrix’s entire estate goes to her
husband. In the event her husband predeceases her, the Will makes alternative gifts to
the couple’s children.
Specific gifts of valuable or nostalgic items:
The contingent gifts to the children provide an excellent example of good
draftsmanship where personal property is involved. All too often, attorneys take the easy
way out and draft Wills that merely require the distribution of property to the testator’s
children “share and share alike.” Such generality does nothing to avoid the family
squabbles that a good Will is intended to prevent. While it would be unreasonable to
assume that a Will could exhaustively inventory all of the testator’s belongings, the
attorney should at least encourage the testator to specifically list any property with
significant monetary or sentimental value (i.e. those items which family survivors are
most likely to fight over). Ideally, the Will should specify a fair and equitable
distribution of these significant items of property. Article V of this form provides an
excellent example of such a distribution among three surviving children (as well as
specific gifts to minor gifts of sentimental property to two grandchildren). Paragraph (6)
of Article V of this Will provides that all of the remaining property not specifically listed
shall be divided among the three children in equal shares.
Exoneration of encumbered property:
Article I of this Will contains a standard and simple provision regarding the
testator’s debts. Two important points are illustrated by this Article of this form: (1) the
Will should do more than merely instruct that debts be paid -- it should explain how
(and from what source) the debts are to be paid. This form employs the simple solution
of requiring that each beneficiary bear a share of the payment of debts and expenses that
is proportionate to his or her inheritance under the Will (see also the Comments to Form
#1); (2) the second paragraph of Article I deals with the question of whether the
beneficiary of property that is encumbered by a lien at the time of the testator’s death
should receive that property subject to the debt. The law on this point differs from state
to state, but in every jurisdiction the statutory presumption can be overcome by clear
instructions in the Will. Thus, this should be discussed with the client, and the Will
should clearly state whether the heirs receive their inheritance subject to or free from
liens and encumbrances. The sample language in Article I provides that all such debts
should be paid off in the probate process so that the beneficiary receives the property free
and clear. If this option is chosen, the Wills should make clear which assets of the estate
are to be used or sold in order to raise the funds necessary to pay off the subject debt
(bearing in mind that the sale of other assets will likely deprive some other expectant
beneficiary of their inheritance). In this form, it is provided that the lien shall be paid off
using funds and property from the residuary estate (in which case the attorney should
make some effort to ensure that the value of the residue will be sufficient for such
purposes). (See also the Comments to Form #7 and provision (14) of Form #7 for further
discussion and examples of exoneration clauses).
Simultaneous Death Clause:
See the discussion of such clauses in the Comments to Form #19.
LAST WILL and TESTAMENT
MARY JANE SMITH
I, Mary Jane Smith, a resident of Birmingham, Jefferson County, Alabama, being over the age of
eighteen (18) years and of sound and disposing mind and memory, do hereby make, publish and declare
this to be my Last Will and Testament, hereby revoking all previous Wills and codicils made by me.
DEBTS AND EXONERATION
I direct that all of my debts, all expense of my last illness, all funeral and burial expenses
(including the cost of a suitable monument at my grave) and the cost of administration of my estate be paid
as soon as practicable after my death. It is my intention, however, that nothing in this Article of my Will
should be construed as creating an express trust or fund for the payment of debts and expenses which
would in any way extend the normal statute of limitations for the payment of my debts or enlarge upon my
statutory duty to pay debts. It is my instruction that all beneficiaries under this Will shall bear a share of
the burden of such debts and expenses that is proportionate to their share of my estate under this Will.
If, at my death, any property which I own and specifically bequeath or devise in this Will is
subject to a lien, pledge, security, or other encumbrance of any kind, such lien, pledge, security interest, or
other encumbrance shall be discharged from my residuary estate, and no liability therefore shall attach to
the devisee or legatee of such property.
I direct that all estate and other taxes in the general nature thereof (together with any interest or
penalty thereon) which shall become payable upon or by reason of my death with respect to any property
passing by or under the terms of this Will or any codicil to it hereafter executed by me, or with respect to
the proceeds of any policy or policies of insurance on my life, or with respect to any other property
including in my gross estate for the purpose of such taxes, shall be paid by my Executor out of the principal
of my residuary estate.
SIMULTANEOUS DEATH CLAUSE
If my husband, John David Smith, and I shall die under such circumstances that there is not
sufficient evidence to determine the order of our deaths, then it shall be presumed that I survived him; and
my estate shall be administered and distributed in all respects in accordance with such presumption.
ENTIRE ESTATE TO HUSBAND
I give, devise, and bequeath to my beloved husband, John David Smith, if he survives me, all of
my property whether real, personal, or mixed, wherever situated and whether acquired before or after the
execution of this Will.
In the event that my husband, John David Smith, predeceases me, I direct that all of my property,