How Wills Work, Part Two

By Doug Casarella – St. Louis, MO Attorney and LegalBuffet.com writer

In part one of this article, we listed out the first few sections of what a basic legal will looks like. Knowing the general contour and shape a will takes will be beneficial to you when you sit down to create one yourself, either on your own or with an attorney.

Specific Devise: In this section, you will list out all your particular gifts of money or real property. One issue to look into is your state’s anti-lapse statutes. If your state does not have one, your gift may not go as you intended. As an example, you might leave your car to your friend Chris. If Chris dies before you do and you forget to change your will, the gift will fail (or lapse). In a state with an anti-lapse statute, the gift will pass to his descendants, presuming you would have given him the gift, and he in turn would have left it to his descendants if he had received it. In a state without that statute, the gift fails and falls into the residue of the estate. If you desire that Chris and only Chris get the car, you could specifically state in your will that if Chris predeceases you, the gift should fail. This flexibility gives you an idea of how customizable a will can be.

Residue: After all your specific gifts, in this section you will decide what happens to the remainder of your estate. Many decide to leave this outright to their spouse, or their children. Another possibility is to have it go into a trust. This could be a newly created trust, or a living trust you create in your lifetime. Such wills where the residue goes into a trust are often called “pour over wills”, as the estate flows from the will into the trust. The benefit of this arrangement is that you can use the trust to exercise more control over how your estate gets spread amongst your family. Additionally, it will be more private. Your will could be shown to anyone during life but, outside of a few specific devises, no one will be privy to your wishes unless you choose to show them the trust document.

In part three of this series, we will look at the final parts of the basic will and how they work.

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