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Your Last Will and Testament: types and provisions to consider

Your estate should reflect your particular desires and circumstances. For example, if you do not own any real estate or significant assets, you may opt to simply have a will. Conversely, if you have a larger estate, you should consider a living trust.

In the event you choose to have a Last Will and Testament, various options exist. Generally, any basic Last Will and Testament includes information such as naming your executor (the person who will administer your estate according to your directives), dispositive provisions (instructing how and to whom your estate will be distributed), guardianship and/or custodianship appointments over any minor children at the time of your demise, and burial and funeral preferences. However, a Will can include more or alternate options as provided below:

Pour-Over Will

A pour-over will is used when you have a living trust in place. In the event you fail to place certain assets into your trust before your demise, your pour-over will can direct your Executor to distribute the property to your living trust. Therefore, the pour-over will serves as a “safety net” to ensure any forgotten or omitted property that you would have wanted to include in your trust estate actually passes to your trustee. The pour-over will can also include provisions that a trust document normally would not, such as guardianship appointments over any minor children you may have at the time of your demise.

List of Personal Property

Your will can include a provision allowing you to make an external document or list of personal property at a later date, along with how you wish to dispose of said property. Thus, in the event you acquire property later and want to make a specific bequest to someone, then you don’t have to amend your will instrument.

Testamentary Trust

A testamentary trust is a trust that can be created through your will instrument, usually to hold property in trust for beneficiaries who are minors or incapacitated. Thus, you can entrust that beneficiary’s share with a trustee until the beneficiary reaches a certain age or a certain condition is met. You can include similar provisions for a testamentary trust as a revocable living trust. However, you should note that unlike a revocable living trust, a testamentary trust still requires your Executor to open a probate court action, and the Trustee will have to render regular accountings to the probate court.

Intentional Omissions

You can include a clause to specifically omit a beneficiary from inheriting, or you can impose conditions that must be met for a beneficiary to inherit. In Nevada, the law presumes you inadvertently omitted your spouse should you fail to provide for your spouse in your will. Thus, if you want to intentionally prevent your spouse from inheriting from your estate, you should include a clause to specifically omit him or her.

No Contest Clause

This clause would provide that any beneficiary that makes a claim against or objects to your will would be stripped of his or her right to receive from the will, or will receive a significantly diminished distribution. You may want to include this clause to deter any beneficiaries from trying to challenge or fight over your will, since beneficiaries can sometimes become contentious over the shares they believe they should inherit from your estate.

Feel free to also see my pages on Wills and Trusts.

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