Preparing Your Simple Will
- Downloading the Form.
- Becoming Familiar with the Mechanics of the Form.
- Adding Your Personal Information to the Form.
- Introductory Paragraph.
- The Goals for this Section.
- Marital Situation.
- Children or Other Issue.
- No Children or Lower Issue.
- Tangible Personal Property (“TPP”).
- Real Property to Spouse.
- Monetary (Pecuniary) Gifts.
- Residuary Gift.
- Catastrophe Clause.
- Custodian Clause.
- Personal Representative.
- Debts, Expenses, Taxes, Etc.
- Signature Block.
Downloading the Form.
Download the Simple Will form and save it to disk: Simple Will form
Becoming Familiar with the Mechanics of the Form.
The form is published in unprotected Word format, so it can be added to, modified, or subtracted from as you desire — you have complete control over its content. The type in black color represents the basic text, which should remain as it is and not be modified unless you are confident of your ability to do so and to obtain the result that you intend. The type in red color represents the fill-in sections, that, here, have been filled in for a hypothetical testator, George Washington. You will need to go to every red colored entry in the form, delete the red text, change the color to black, and fill-in the section with the text that you desire for your Will. The type in blue color represents what is known as “hidden type.” These are instructions that are inserted into the form and are readable on your computer screen, but that are ignored and do not show upon printing. To illustrate this, click on File > Print Preview or on the Print Preview button on your Toolbar, and you will see what the form would look like if you printed it right now:
- The black type is there in black.
- The red type is there in red.
- But all the type in blue has disappeared, and the space that was taken by blue text has now been taken up by the remaining text. Consequently, you don’t need to delete the blue text before printing your Will.
Adding Your Personal Information to the Form.
- Substitute your name for “GEORGE WASHINGTON” in the heading.
- Change the color of the type from red to black.
From here on, the “Change the color” instruction will be omitted, but make sure that after you make whatever change you desire, if the color of the type is red, then change it to black, so that upon your completion of the Will, it contains no red type.
- If you use any one or more other names than the name than you inserted in the Heading, then add those names to the “also known as …” parenthetical remark. Otherwise, delete the parenthetical remark.
- Add the City and County of your residence.
- The Goals for this Section.
- To describe your present marital situation.
- To name, and provide the birth date of, every now-living child of yours (natural or adopted).
- To name, and provide the birth date of, every now-living child (natural or adopted) of every now-deceased child of yours (natural or adopted).
- If you are not now married and have no now-living issue, to name, and provide the addresses of, your apparent heirs (ie, parents, siblings, etc.).
- To combine this information preferably into one paragraph.
- Marital Situation. Select the appropriate text for your marital situation. Besides those situations shown on the form, here are some others:
- Life Partner: If you are not now married but living with a life-partner, this is the place to state that; for example:
Possibility #1: I am not now married, but since approximately January 1, 2000, I have been living with Sam Adams, who I consider to be my husband, and all references to “my spouse” in this Will are to him. Possibility #2: I am not now married, but since approximately January 1, 2000, I have been living with Sam Adams, who I consider to be my life partner, and all references to “my partner” in this Will are to him.
Note: If you choose to use the “my partner” language like the above, make sure that you go through the Will form, find every reference to “my spouse,” and change it to “my partner.”
- Separated: If you are now married but have separated or filed, for example, for dissolution, this is the place to state that and your intentions as to your current spouse; for example:
Possibility #3: I am married to but living amicably separate and apart from Martha Washington due to our working at distant locations, and all references to “my spouse” in this Will are to her. Possibility #4: I am married to but living separate and apart from Martha Washington due to marital discord. For all purposes of this Will including that of heirship, Martha Washington shall be considered to have predeceased me.
Note: So long as you and Martha remain married, she is entitled to her one-half interest in your and her community property, but the “For all purposes of this Will …” clause should allow you to decrease the likelihood of her becoming a distributee of your estate, if that is what you desire. Possibility #5: I am married to Martha Washington, but on [date] I filed a Petition for Dissolution of Marriage in King County, Washington, Superior Court, Case No. [xxx], which remains to be heard. For all purposes of this Will including that of heirship, Martha Washington shall be considered to have predeceased me.
- Children or Other Issue. Select the appropriate text for your children and issue situation. Besides those situations shown on the form, here are some others:
- Children of a Prior Marriage:
Possibility #6: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage, and their names and birthdates are: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have no deceased children or children of my current marriage. Possibility #7: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have one child of my current marriage: James Washington, born March 15, 1998 who is now living. I have no deceased children.
- Adopted Children: RCW 11.04.085 provides that an adopted child is not an heir of his/her biological parents, and RCW 26.33.260 provides that an adopted child is an heir of his/her adopted parents. Consequently, for purposes of your Will, any child you have adopted will be considered as a child of yours, equal in status to any natural child of yours, and little reason exists for describing a child of yours as being a natural vs. an adopted child unless you have some personal desire to do so.
- iii. Non-Natural, Non-Adopted Children: One of the beauties of the law is that in many cases, such as this case, you get to make your own rules. So, for example, if you wish to consider one or more non-natural, non-adopted children as your own for purposes of your Will, you may do so. One circumstance in which this situation arises with some frequency is with second or further marriages in which:
- One or both spouses has one or more children of a prior marriage, and
- Both spouses wish to consider their collective children as their own; an example:
Possibility #8: I am married to Martha Washington, and all references to “my spouse” in this Will are to her. I have two children of a prior marriage: Robert Washington, born January 1, 1990 Susan Washington, born February 28, 1992 both of whom are now living. I have one child of my current marriage: James Washington, born March 15, 1998 who is now living. I have no deceased children. Martha Washington has one child of a prior marriage: Sarah Smith, born March 15, 1988 who is now living. For all purposes of this Will including that of heirship, “my children” shall be considered to be the class of persons consisting of Robert Washington, Susan Washington, James Washington, and Sarah Smith.
Note: Possibility #8 represents the truly “blended family,” in which the Testator for purposes of his Will is making “his children” to be:
- The children of his prior marriage, plus
- The child of his present marriage, plus
- The child of his wife’s prior marriage.
Presumably, his current wife, Martha Washington, would have a reciprocal provision in her Will, making “her children” to be:
- The child of her prior marriage, plus
- The child of her present marriage, plus
- The children of her husband’s prior marriage.
Of course, there is no legal obligation for either George or Martha to include the child or children of their spouse’s prior marriage as their own for purposes of their respective Will, and presumably they would only do so following serious consideration and mutual communication.
- No Children or Lower Issue.
- Spouse + No Issue. This is really not a problem for purposes of heirship, as in the absence of any issue, your spouse would not only take your half of the community property but also all of your separate property to the extent you did not provide otherwise in your Will.
- No Spouse + No Issue. If you are not now married and have no issue, this is the place to state that and to indicate your apparent heirs; for example:
Possibility #9: I have never been married and have no issue. My parents are: John & Mary Washington 1600 Pennsylvania Avenue Washington, D.C. both of whom are now living. Possibility #10: I have never been married, I have no issue, and both of my parents are deceased. My siblings are: David Washington 1234 Palm Street Los Angeles, CA & Elizabeth Fitzgerald 4321 Apple Street New York, New York both of whom are now living. Possibility #11: I am not now married, I have no living issue, and both of my parents are deceased. My siblings are: David Washington 1234 Palm Street Los Angeles, CA & Elizabeth Fitzgerald c/o Harold Fitzgerald 4321 Apple Street New York, New York David is now living. Elizabeth is deceased leaving now living issue, who may be contacted through her surviving husband, Harold Fitzgerald, at the foregoing address.
Note: The reference in the first sentence of Possibility #11 to “no living issue” indicates that the Testator has had children, but they are now all deceased leaving no living issue. Otherwise, he would have said “I have no issue,” indicating that he has never had any children.
- Tangible Personal Property (“TPP”). While Washington law does not recognize a holographic (ie, handwritten and unwitnessed) Will made in Washington, it does provide for a holographic writing referenced in a Will regarding the disposition of TPP except for cash or property used primarily in trade or business. RCW 11.12.260 Consequently, it is more convenient to dispose of TPP in such a writing than directly in the Will. See Memorandum re Tangible Personal Property.
- Real Property to Spouse. Gifts of specific, named items in one’s estate are known as “specific gifts” (if of personal property: “specific bequests”; if of real property: “specific devises”). Making specific gifts, as opposed to leaving the property in the residue of one’s estate, has two primary purposes:
- Ensuring that the asset will pass to your desired, named beneficiary, and
- Reducing the likelihood that the asset will be diminished or exhausted as a result of its being used for the source of funds to pay one’s debts, expenses, taxes, etc., as specific gifts are “lower down on the totem pole” than residuary gifts (ie, gifts from the residue of one’s estate) in terms of priority of property for such use. See abatement and RCW 11.10.010.
Consequently, one way to increase your chances that a beneficiary will actually receive any asset you wish that beneficiary to receive and without its being diminished or exhausted is to make that asset the subject of a specific gift. Here, by making a specific gift of your real property, and most likely of your home, to your spouse, you are in effect saying that it is more important to you that your real property pass to your spouse than your residuary property passing to your residuary beneficiaries. If you have any other property that is of primary importance to you that it pass to your desired beneficiary, you may wish to consider making such property the subject of a specific gift.
- Monetary (Pecuniary) Gifts. If you desire to make any gifts of money, either directly (through the actual payment of money) or indirectly (through the forgiveness of debt), this is the place to do it. As you might imagine, pecuniary gifts share the same features as specific gifts, in that they both:
- Pass to named beneficiaries, and
- Are “lower down on the totem pole” than residuary gifts in terms of priority of property for the source of funds used to pay one’s debts, expenses, taxes, etc.
Consequently, the more property you give by either specific or pecuniary gifts, the more financial burden you place on the residue of your estate, and on your residuary beneficiaries, for such payment. You can’t create property or lessen the absolute amount of your debts, expenses, taxes, etc. by this procedure — you can only shelter some of your assets from this burden and by doing so shift the burden onto the remaining assets in your estate and their beneficiaries.
- Residuary Gift. This is the “everything that’s left after the distribution of all my specific and pecuniary gifts and the payment of all my debts, expenses, taxes, etc. I want to give to …” clause. As you might imagine, there are about as many ways of making this gift as there are testators. One popular way is by a cascading “waterfall” series of contingent gifts, illustrated in clauses E through G of the form, such as in effect “all to my spouse if he/she survives me, and if not then all to my issue who survive me, and if not then all to my heirs who survive me, etc.”; this, and variations on it, are more typical in the presence of a spouse and children. Another popular way is by fractional or percentage shares, illustrated in clauses H and I, respectively, of the form; this is more typical in the absence of a spouse and children. Note that clause J of the form is a “pour-over” of assets to the Trustee of one’s Living Trust and is to be used only in conjunction with the use of a Living Trust as the vehicle for one’s estate planning.
| Providing for Charities and Other Institutions in One’s Will: A remarkably persistent and continuing problem your author faced in both his estate planning and probate practice was dealing with the gap between a testator’s intentions in the making of a gift to charity and the likelihood of that intended charity’s eventual receipt of the testator’s gift. Specifically, in the estate planning area, many testators had only a vague notion of the actual name of their intended charity. If it was, for example, the Salvation Army, is it its national organization? or the state organization? or the local branch? or for some specific program sponsored by some Salvation Army branch somewhere? or what? And in the probate area, many decedents provided only the barest description of their intended charity, leaving their Personal Representative and the Court (and charities coming out of the woodwork) to ponder just who should receive the gift. This is the natural making of a lawsuit, to resolve the ambiguity. Moral of the story: If you provide for a charity or other organization in your Will, before doing so, please contact an officer of the organization, obtain its correct legal name, and use that name in your Will (along with any specific purpose for which you wish the organization to use your gift, unless you wish the organization simply to add your gift to its general fund).
- Catastrophe Clause. The primary purpose of this clause is to ensure that in the improbable case in which none of your individual beneficiaries or heirs survives you, your property will not pass to the state (ie, “escheat”) but, instead, will go to a charity or other institution of your choice. Consequently, you should select as your catastrophic beneficiary one in which you have confidence of its longevity — that it will continue on and be there “no matter what.”
- Custodian Clause. The primary purpose of this clause is to lessen the chances that a guardianship will need to be created if any gift passes to a minor beneficiary. Note that one effect of this clause is to extend the period of minority from 18 to 21 years. If you wish to continue to use the legal age of minority instead of the three-year extension to 21 as this clause provides, you should reduce the provision of “21 years” to “18 years.” Also note that, as indicated above, under Washington law, this method of avoiding the creation of a guardianship cannot be extended past 21 years (past 25 years for transfers made on or after July 1, 2007).
- Personal Representative.
- Nomination. Add the names of those that you want to serve as your Personal Representative. Your nominee need not be a Washington resident, although any nonresident ultimately appointed as Personal Representative will be required to designate a Washington resident for service of process on the estate. Note that you are providing that no Personal Representative will be required to post bond, meaning that if your Personal Representative absconds with your estate and disappears south of the border (or elsewhere), your beneficiaries won’t have any recourse, such as the effective insurance policy that a bond would provide. If you wish to provide for bond, change the phrase “without bond” to “with bond” and expect your estate to bear a small premium for its purchase. See www.WeBondU.com or http://www.jurisco.com for typical current rates.
- Nonintervention. Note that you are expressly authorizing the Court to grant Nonintervention Powers to your Personal Representative upon his/her appointment. Having Nonintervention Powers will allow your Personal Representative to administer the estate with minimal Court supervision or interaction. If you wish the Court to continue to provide active supervision over your Personal Representative after his/her appointment, change this sentence to read as follows: “Nonintervention Powers shall not be granted to any Personal Representative of mine.”
- Powers. This sentence provides that your Personal Representative will have not only all powers expressly authorized by Washington law for a Personal Representative as regards a probate estate but also all those so authorized for a Trustee as regards a trust estate.
- Debts, Expenses, Taxes, Etc.
- Everything from the Residue of the Probate Estate. This sentence provides that the residue of your probate estate will bear ALL of the debts, expenses, taxes, etc. following your death, not only of your probate estate but also of your nonprobate estate as well. In other words, assuming that your estate has no problems will solvency (ie, running out of funds to pay debts, expenses, taxes, etc.):
- All your nonprobate assets will pass without diminution to your nonprobate beneficiaries,
- All your TPP, specific gifts, and pecuniary gifts will pass without diminution to their beneficiaries, AND
- Your residuary beneficiaries will bear the FULL burden for the payment of your debts, expenses, taxes, etc. — without any apportionment among the other beneficiaries.
This may not make much difference if all of your assets are probate assets and the amount of your TPP, specific gifts, and pecuniary gifts is small relative to the amount of your residuary estate. If, however, you have significant nonprobate assets, TPP, specific gifts, or pecuniary gifts, and especially if they pass to persons other than your residuary beneficiaries, your residuary beneficiaries may be significantly prejudiced, particularly if your debts, expenses, taxes, etc. are substantial.
- Everything Apportioned Among All Assets. One alternative way of handling the payment of your debts, expenses, taxes, etc. is to apportion them among all the assets in your estate, both your probate estate and your nonprobate estate, so in effect, every asset will pass subject to its own proportionate share of your total debts, expenses, taxes, etc. On one hand this may be more fair, as it treats all beneficiaries equally. On the other hand, it is more cumbersome to administer, especially with nonprobate assets (as they are not in the probate estate and thus not subject to the Personal Representative’s direct administration), and it can cause problems with illiquid assets (eg, finding a source for the pertinent payment regarding an asset such as a car or parcel of real property that has no cash readily associated with it). The former problem is usually handled by the Personal Representative seeking reimbursement from the nonprobate beneficiaries. The latter problem is usually solved either by the beneficiary simply advancing the amount of the pertinent payment or by the Personal Representative obtaining a loan secured by the property and then distributing the property subject to the loan. If you desire that every asset pay its own proportionate share of your debts, expenses, taxes, etc., substitute for the sentence shown in the form the following sentence: “My Personal Representative shall apportion any costs and expenses of last illness, funeral, and burial, debts and expenses of administration, and estate and inheritance taxes (together with any interest and penalties thereon) among the assets in my probate and nonprobate estate in proportion to the ratio of the net value of each such asset as of my date of death over the total net value of all such assets as of my date of death and shall seek reimbursement therefor as regards my nonprobate assets from their respective beneficiaries.”
- iii. Debts & Expenses from the Residue + Only Taxes Apportioned. Another, more efficient, compromise alternative is to provide that the residue of your probate estate bear all of your debts and expenses, as they will presumably be relatively small and doing so will be substantially more efficient, and provide for apportionment only for estate and inheritance taxes, which in a smaller estate should be nothing but in a larger estate can be significant. If you desire to use this alternative, substitute for the sentence shown in the form the following sentence: “My Personal Representative shall pay any costs and expenses of last illness, funeral, and burial, and debts and expenses of administration from the residue of my probate estate, and shall apportion estate and inheritance taxes (together with any interest and penalties thereon) among the assets in my probate and nonprobate estate in proportion to the ratio of the value of each such asset as of my date of death over the total value of all such assets as of my date of death, and shall seek reimbursement therefor as regards my nonprobate assets from their respective beneficiaries.”
- Nomination. If you have minor children, add the names of those that you want to serve as the Guardian of your minor children if your spouse does not survive you; otherwise, delete this section. Note that this section provides that the same person will serve as both the Guardian of the Person (effectively, as substitute parent of your minor children) and the Guardian of the Estate (effectively, as manager of the property of your minor children) for all of your minor children. If you wish to nominate one person as Personal Guardian and another as Financial Guardian, see the alternative Will form provision “Nomination of Separate Guardians of Person & Estate.” To nominate different guardians for different minor children, use the language provided as a guide.
- Signature Block. Add your name to the signature line.
- Review. Review your finished product:
- Make sure that there is no red type in it.
- Make sure that the only text that is shown in bold is the title, the headings, and the IN WITNESS WHEREOF.
- Make sure that you have deleted all the default entries in the form, eg, George Washington.
- And most importantly, read it through time & time again, making sure that it makes sense, “hangs together,” and fully expresses what you want to have happen in all varieties of circumstances, eg, depending on various orders of death. After all, this is your Will. It is called a “Will” because its purpose is to express what you want to happen when you are no longer alive to answer any questions about it or resolve any ambiguities in it. Make sure it says exactly what you want it to say, without any compromise whatsoever, and says it clearly, directly, and unambiguously.
Congratulations. You have now completed the steps required to prepare a typical simple Will.
Introduction amp; Initial Decisions
Executing (Signing) & Attesting (Witnessing) Your Will