The content of your last will and testament usually depends on your personal and financial situation and should include ALL of your assets. Any remaining assets will be managed by the probate court, so you may want to consider a residuary or “leftovers” clause to prevent this. It may be as simple as “I leave my remaining assets to _________“.
It is important that your will reflects your wishes and clearly lays them out in enough detail to be faithfully carried out. Sometimes the body of the will is not adequate to do this and you can use additional measures to do this.
- There are many forms available for specific tasks, such as a Beneficiary Designation Form, Personal Property Memorandum, and Digital Assets Memorandum, that can guide you through these tasks to provide additional detail and clarity.
- Codicils or Addendums can be used to add clarity and detail to other tasks. Although they are considered part of your will, they have the advantage of being able to be created or updated without having to update your entire will.
You can purchase programs, such as Quicken WillMaker & Trust 2020, that guide you through the process of creating a Will or Trust or you can down-load state-specific will templates.
List the names and ages of everyone you want to designate as a beneficiary.
This means your spouse, children, siblings and anyone else you want to leave part of your assets to.
In some states you can also use a Beneficiary Designation Form.
Be sure to revise your will when beneficiaries change to avoid leaving someone out or losing assets because someone has died.
You may also want to have contingencies for the possibility of a divorce or something happening to one of the beneficiaries.
This protects these assets from being distributed by the probate court according to state law, rather than your preference.
To account for the death of a beneficiary, you can either designate an alternate beneficiary or provide details on how your assets would be distributed to the remaining beneficiaries.
Another option is a “residuary beneficiary,” a person that you can designate to receive everything left in the estate after:
Your choice of Executor/Personal Representative
The will designates a still-living person as the Executor or Personal Representative of the estate who is responsible for administering the estate.
Your last will and testament will be most effective if all of your assets are accounted for.
Be sure to include instructions for complicated items, like certain tools or antique cars.
Addenda to wills are becoming common.
List of Probate Assets
The inventory list for your last will and testament should include all the property solely owned by you, including all major property, accounts, and sentimental items. Once completed, the inventory list becomes part of the will and is filed with the probate court that will be responsible for your last will and testament after you die.
Because it is a part of your will, any changes require you to update your primary will. As seen below, this does not affect any addenda.
Items to include in the inventory list are any of those listed below for which you are the only owner.
Personal Property Memorandum
In 30 states you can list your tangible assets in a Personal Property Memorandum. Tangible property is anything that can be touched; papers representing property do not count.
If it is mentioned in the will, it becomes a legal part of the will. Something like: “I am leaving a separate document from this will that disposes of some or all of my tangible personal property, that I direct to be incorporated into this will and followed by my executor. “
Since the personal property memorandum is an addendum to your will, it gives you the ability to list and easily update all of your property without having to change the entire will.
By being very specific in this document, you can prevent your personal possessions from becoming a significant source of will contests or a contest of wills involving family members.
In order to accomplish this, here are a few more suggestions. Make sure that:
You don’t need witnesses to watch you sign or to have your signature notarized.
Although part of the inventory list, you cannot include real estate or nonphysical/intangible property such as:
Keep it in the same place as your will, where your executor will be able to find it easily.
Digital assets memorandum
It seems like just about everything these days involves a computer or smartphone. And if you think about it, with everything from email to digital music to online banking, we all have a huge digital footprint. Even some of our money may be digital, in the form of Cryptocurrency, such as Bitcoin, Ethereum, Litecoin, Bitcoin Cash, etc.
Similar to the personal property memorandum, the digital assets memorandum (PDF) allows you to list and easily update your digital assets. It may be the most efficient way to guide your executor through this digital landscape.
First of all, consider all the devices that need to be accounted for, some of which may be password protected. Just a partial list of the most common ones your files or information may be stored on would include:
More daunting than the number of devices to look at is the number of locations and the amount and type of information that has to be dealt with. See the section Checklist of information for details.
Many of us are not familiar with cryptocurrency and many of those who are have trouble understanding it. For these reasons, it may not be recognized as a digital asset that can be passed on to beneficiaries and needs to be mentioned separately.
It is basically digital money that can be traded or used to buy items in a similar way to a debit card. Similar to changing values for currency exchanges, which are tied to the vagaries of the market, cryptocurrency can also change in value, or buying power, over time.
Aside from making sure that everyone is aware of your cryptocurrency, there are other steps needed to assure it is inherited.
Specific instructions for all of your assets
It is important to be specific about who is to receive individual assets. While you could leave it up to the beneficiaries/heirs to decide, it may not be the best action, especially items of sentimental value.
Be sure to revise your will when beneficiaries change to avoid leaving someone out or losing assets because someone has died. You may also want to have contingencies for the possibility of something happening to one of the beneficiaries.
If you have specific gifts in mind you will need to identify who will receive each asset. This includes gifts to individuals as well as the amount of any charitable donations.
Make sure you have the correct Beneficiary Designation Form and account for all of your assets on it. A Personal Property Memorandum can also make it easier to be more specific about individual items, if you spread them around more. So, instead of a statement leaving all your:
Other documents that can record specific instructions include College Investing Plan Accounts, Joint Tenant with Right of Survivorship and Tenants by Entirety accounts, Annuities, Health Savings Account, Transfer on Death account, and Payable on Death account.
In addition to who will receive your assets, you can also be specific about how you wish your assets to be managed after your death.
You may also use your will to forgive any outstanding debts owed to you.
If you are leaving anyone out of the will (disinheriting), specify this, along with your reasons, to reduce the chance of it being questioned. However, a surviving spouse is entitled to a certain share of the property in all states, even if there is a will stating otherwise.
- A Guide to Estate Planning Involving Digital Assets. Posted: The National Law Review website. February 17, 2019. Accessed: August 14, 2019.
- Broemmel M. Inventory List for a Last Will & Testament. Legal Beagle website. Accessed: September 23, 2019.
- Haman E. What Assets Need to Be Listed for Probate? legalzoom website. Posted: December 2010. Accessed: September 24, 2019.
- How Does Cryptocurrency Work? (for Beginners). CryptoCurrency Facts website. Accessed: August 14, 2019.
- Kaminsky M. Estate Planning: 11 Things to Do Before You Die. legalzoom website. Posted: April 2016. Accessed: September 24, 2019.
- Kaminsky M. Top 10 Considerations When Naming a Guardian in Your Will. legalzoom website. Posted: April 2011. Accessed: August 7, 2019
- Kennedy A. What Is Included in Personal Items in a Will? legal zoom website. Accessed: September 24, 2019.
- Randolph M. Using a ‘Personal Property Memorandum’ With Your Will. NOLO website. Accessed: September 24, 2019
- Sember P. Do All Wills Need to Go Through Probate? legalzoom website. Posted: August 2014. Accessed: October 3, 2019.
- State-specific Digital Estate Planning Laws. everplans website. Accessed: September 24, 2019.