Wills & Testamentary Trusts:

Functions, Core Provisions, and When to Use Them

1. Why These Documents Matter — at a Glance

2. When to Use a Simple Will

• Single or married with modest assets below your state’s probate-shortcut ceiling.

• All beneficiaries are responsible adults (no minors or special-needs heirs).

• Your property is mainly TOD/POD or jointly titled, so the will functions as a “safety net.”

• No estate-tax exposure under federal or state thresholds.

Red flag: If any heir is under 18—or if you own real estate in more than one state—consider upgrading to a will with testamentary trust or a living trust for smoother administration.

3. Preliminary Clauses (a.k.a. “Introductory Provisions”)

What you’ll see in the first few paragraphs of a sample document:

1. Family Identification – lists spouse, children, and sometimes parents for clarity.

2. Definitions – explains terms like issue, per stirpes, and fiduciary so a court won’t have to.

3. Revocation Language – explicitly cancels all prior wills and codicils.

Why it matters: Crystal-clear definitions now prevent expensive courtroom debates later.

4. Bequests & Gifts

• Specific Bequests – “$10,000 to my niece, Sara” or “my Steinway piano to my brother.”

• Residuary Clause – the “everything else” bucket; often split by percentage among primary heirs.

• Lapse & Contingency Clauses – directs where a gift goes if the named beneficiary dies first.

Sample language:

“I give, devise, and bequeath all the rest, residue, and remainder of my estate to my spouse, and if my spouse does not survive me, then equally to my children, per stirpes.”

5. Tangible Personal Property Provisions

• Authorizes a “personal property memorandum”—a separate, handwritten or typed list of who gets jewelry, heirlooms, art, etc.

• States that the most recent, dated memo overrides earlier versions.

Benefit: You can swap gifts around without rewriting the whole will.

6. Real-Property Provisions

• Specific Gift: “I leave my lake cabin at 123 Redwood Lane to my son, Jack.”

• Sale-or-Retain Authority: Allows the executor or trustee to sell, rent, or hold real estate based on market or family needs.

• Unified Direction for Out-of-State Homes: Simplifies ancillary probate by instructing deeds to transfer directly or into trust.

7. Fiduciary Powers & Appointments

Common power list (appears as a long paragraph or schedule in samples): buy/sell assets, borrow, lease, insure, settle claims, access digital accounts, and employ professionals.

8. Will Execution Requirements

1. Signature by Testator – using the exact legal name.

2. Two Disinterested Witnesses – most states; some require three.

3. Self-Proving Affidavit – notarized statement signed by testator and witnesses; makes later probate faster.

4. Safekeeping – store the original in a fire-safe box; tell the executor where it is (or lodge with the court, if your state allows).

9. How Testamentary Trusts Work (Quick Primer)

• Activate only upon death.

• Funded by the will’s instructions (e.g., “Residuary to Trustee of the Family Trust”).

• Typical triggers: beneficiary under 25; beneficiary on government benefits; spouse needs lifetime income with remainder to kids.

• Trustee distributes income/principal per standards like “health, education, maintenance, and support (HEMS).”

10. Putting It All Together

1. Inventory your assets and heirs—then decide if a simple will covers the bases or if testamentary trusts add needed protection.

2. Draft preliminary clauses to avoid ambiguity.

3. Layer bequests from specific gifts to the residuary pot.

4. Empower your fiduciaries with flexible, modern powers.

5. Execute correctly—sloppy signing is the #1 reason wills get tossed.

Need help tailoring these provisions to your life? Book a strategy call and we’ll walk you through sample documents line-by-line, ensuring every clause fits your goals, your family, and your state’s latest laws.