SOME GENERAL THOUGHTS ON MAKING WILLS 


Caveats 

This series of thoughts on making wills are intended
to help the reader understand the value of making a
will, and in no way is intended to be a guide for any
specific will. On the contrary, the author urges
anyone who wishes to make a will to consult with a
qualified lawyer and have the lawyer use his skills to
write your will. The reader should also understand
that each of the fifty states have their own rules for
drafting wills. This author received his training in
the State of Georgia, and if any law is referred to it
will be the laws of Georgia. Most all states have some
common ground, such as the maker of a will must be
mentally competent and must have reached a certain
age. The author will not attempt to show the
difference among the many states, but will caution
anyone living in Louisiana that many of this state’s
laws are derived from French law. The other states
generally followed the laws of Great Britain in
initially formulating their laws. Particular attention
must be given to laws as they exist in Louisiana when
making a will. Because Louisiana is such a special
case, this series of articles will not attempt to
discuss the Louisiana Law on wills. 



One other area that these articles will not attempt to
discuss is the subject of estate planning. One does
not have to worry about estate planning unless his or
her total estate is more than one million dollars at
the time of his or her death (at least that will be
the law beginning on January 1, 2011.) The whole area
of estate planning is in a state of flux until then,
and anyone expecting his estate to be equal to more
than one million dollars should absolutely consult a
lawyer specially trained in estate planning. As a side
thought, the current administration is trying to
eliminate taxes on any estate, no matter how large,
and there’s a lot to be said in favor of this
proposal. 



One other area of caution is to avoid folks who are
selling “Living Trusts.” The pitch given by the
proponents of living trust is that they help you avoid
probate. There is no need for anyone who has a modest
estate to avoid probate, since probate, particularly
in a state like Georgia, is very inexpensive. For
large estates, the problem of probate becomes very
expensive in a state like New York. Thus, in states
like Georgia and Alabama (I think), probate is rather
inexpensive, if a relatively good will has been
prepared. Generally, folk who are selling living
trusts are only interested in selling you insurance.  



First Principles 
 


We should write a will because God expects us to be
good stewards over the property He has entrusted in
our care. There is a corollary to this rule. In
Malachi, God reminds us that that we have failed in
our tithes and offerings to him. Many of us think we
are pretty good tithers, but we tend to overlook
giving God generous offerings in addition to our
tithes. We can make up for some of our failures by
leaving our local church an offering in our wills.
Remember that we came into the world penniless and we
certainly can’t take it with us, so your will is a
great way to make up for missed opportunities. 



Some Basic Rules 
 


Rule No. 1. Be specific with your gifts. One of the
worst wills ever written simply stated, “All to
Mother.” What is wrong with this will? First, who is
his mother? Second, if you can identify the mother, is
she living? If she is not living, who inherits? What
if his birth mother gave him away for adoption, which
mother inherits? This situation could have been
avoided if the maker of the will had simply stated: ”I
leave all of my property to my mother, Mrs. A. J.
Smith of 110 Altercation Way, Piney Woods, Georgia. If
my said mother does not survive me, I leave my
property to my brother, Joe Blow Smith, 500 Green
Peace Ave, Harvard, Georgia. Further, if said Joe Blow
Smith does not survive me, I leave all of my property
to said Joe Blow’s children in equal shares.” 



Rule No. 2. Always name a contingent beneficiary in
any gift left to someone in your will. This rule,
really, is a corollary, to rule No. 1. The reason is
obvious, since one or more of your beneficiaries may
predecease you. In the above case, we examined a
situation where the Mother might predecease her son.
If no contingency is given in the will, the property
will be distributed to others according to the laws of
descent and distribution of your particular state, and
your wealth may be distributed to people whom you have
no use for. The above example illustrates not only
specificity, but also contingency. Another item of
contingency could have been expressed in the solution
to the “All to Mother” example. Instead of just
leaving property to Joe Blow’s children, it could have
been phrased, “to said Joe Blow’s children in equal
shares who are alive at the time of my death.”  



We mentioned, above, the laws of descent and
distribution.” These laws which vary from state to
state are rules which take over the will when the
named beneficiaries have predeceased the testator (or
maker of the will), and no contingent beneficiary has
been named. Even so, contingencies are limited. You
cannot control your property forever by continuously
naming contingent beneficiaries. If you try this you
will violate the “rule against perpetuities.” This is
a rather technical rule, but basically the rule is
that you cannot name a possible beneficiary who is
born 21 years after the death of a named beneficiary
who is identified in the will. A good attorney will
make sure that you don’t violate this rule.