Gifts

The gifts area of your simple will is where you will make gifts of your probate assets to the beneficiaries of your choosing. This area of your simple will is divided into the following sections:

1. specific gifts, demonstrative gifts, and general gifts, which together are types of gifts that allow you to give away particular property or categories of property;
2. gifts of the residue, which are gifts of all your probate assets that remain after the specific, demonstrative, and general gifts are distributed;
3. a statement that gifts to minors will be held in custodianships; and
4. a no-contest clause to discourage beneficiaries from challenging your simple will.

In the materials that follow, we explain the different types of gifts in a simple will and how they relate to each other. We also explain many laws that govern gifts in simple wills. Lastly, we provide model language for writing each of the above sections and examples of how to write gifts of various types.

Required Reading

If you haven’t noticed already, you will quickly see that this page of instructions is much, much longer than any of the previous pages of instructions. The reason is that there is a large and complex web of interrelated laws that apply to giving gifts in a simple will, and you need to have a good understanding of these laws and how they relate to each other to make even the most basic gifts in your simple will. We have done our best to provide simple explanations of the laws here, but we can’t help the fact that there is a lot of material to learn. Fortunately, once you have studied these materials you will have built a strong understanding of some of the most fundamental laws governing wills in Washington State, and that knowledge will come in handy during the rest of the will-writing process.

Read and familiarize yourself with all of these materials before writing any gifts in your simple will. Be sure to follow all of the links and read the material there too. If it seems like a lot to learn, you’re right, but you need to know all of it to write your simple will properly.

Types of Gifts and How They Fit Together

You will use up to three methods to give away probate assets with your simple will:

• The first method is specific gifts, demonstrative gifts, and general gifts written into the will itself.
• The second method is gifts of tangible personal property in a separate writing.
• The third method is gifts of the residue written into the residue clause of the will.

Of these methods, only the gift of the residue is required.

When planning how you want to give gifts under your simple will, you need to consider the order in which gifts in a will are distributed. First, the expenses of probate and the testator’s properly claimed debts are paid. Second, the specific, demonstrative, and general gifts are distributed. Finally, whatever probate assets still remain are distributed according to the terms of your residue clause. If, for example, you give away all of your probate assets using specific, demonstrative, and general gifts, then there will be no residue, and the beneficiaries under your residue clause will not receive any residue. On the other hand, if you decide not to give any specific, demonstrative, or general gifts, then all of your probate assets will be distributed to the beneficiaries named in your residue clause. You can think of your residue clause as your “catch all” clause to make sure that you do not overlook any of your probate assets.

Specific, Demonstrative, and General Gifts Written into the Will

Take some time now to read about specific gifts, demonstrative gifts, and general gifts. When written into a will, these kinds of gifts can be used to give tangible personal property (such as vehicles or jewelry), cash, intangible assets (such as some shares of stock), even some real estate. In your simple will, these gifts can only be used to give away probate assets, never nonprobate assets. The difference between probate and nonprobate assets is discussed in more detail, below.

Every gift in a will must be written clearly enough that your personal representative, the court, and your beneficiaries know with certainty what assets are being given. For example, if your simple will says, “I give my car,” and you happen to own not one, but two cars when you die, it will not be clear which of the cars you intended to give. Similarly, if you own only a pickup truck when you die, it would be unclear whether you intended “my car” to apply to your pickup truck. The language you use to describe each gift should be clear enough that no reasonable person could misunderstand your intention.

Any specific, demonstrative, or general gifts you put in your simple will should be worded using the customary phrasing we provide below, in the Customary Phrasings for Gifts section. Some kinds of gifts, including gifts of cash and real estate, require very particular phrasing. In fact, for the sake of simplicity, and because of the problem of ademption (which is discussed below), we usually recommend against making specific, demonstrative, or general gifts of real estate. Instead, we recommend that testators allow their real estate probate assets to pass as part of the residue of their estate.

Because of the problems that can arise with specific and demonstrative gifts (such as abatement and ademption, which are discussed below), we encourage you to use specific and demonstrative gifts only when you want to be sure that a specific person will receive a specific item or category of property or a specific sum of money. When you want to give a gift of a fraction (or all) of the value of your estate, and it is not important to you what actual probate assets are used to form the gift, then it is best to use a gift of residue in the residue clause (discussed below).

Gifts of Tangible Personal Property in a Separate Writing

Washington State law permits a testator to give gifts of tangible personal property in a writing separate from the testator’s will. Such a writing can only be used to distribute “tangible personal property,” which is a phrase with a very specific legal meaning. Such a writing cannot be used to give away real estate, mobile homes, stocks, cash, intellectual property rights, the contents of bank accounts, or anything else that is not listed in the definition of tangible personal property. You should not attempt to give away property using such a writing unless you are certain that the property qualifies as tangible personal property and you have followed all of the requirements for using such a writing.

We usually recommend that testators not use a separate writing to dispose of tangible personal property because keeping such a writing creates significant unnecessary risks. Probably the biggest risk is that such a writing creates opportunities for others to falsify gifts to themselves. For example, you may decide you want to keep such a list so you can give away specific books in your book collection, with no intention of ever using the writing for anything else. However, after you pass away, someone else could mimic your handwriting or signature to create additional gifts you never intended, giving away your vehicles, furniture, computer, etc. Because such a separate writing does not require witnesses or notarization like a will, creating such a forgery is comparatively simple. Merely by mentioning such a writing in your will (whether you make such a writing or not) you run the risk of such a forgery.

Another significant risk is that a separate writing increases the likelihood of will dispute litigation. Even if your separate writing is properly made, contains no forgery, and is exactly what you intended, it is an easy target in litigation. Because such a writing does not require witnesses or notarization, your family and loved ones could easily get into arguments over whether your separate writing is valid, and they could file a lawsuit to resolve this issue. In other words, merely by having a separate writing you open the door for litigation that might otherwise be avoided.

If you decide to keep a writing disposing of tangible personal property, you will need to write into your simple will a description of where the writing will be stored. We recommend that you state in your simple will that you will store the writing in your file cabinet, your safe, or your safe deposit box (whichever you prefer). You should be sure to store your actual writing in the place you indicate in your simple will.

Again, we recommend against keeping separate writings to dispose of tangible personal property. In spite of the risks, our simple will template includes optional language you can use to indicate you will maintain such a writing, and we also provide a template you can download and use to keep such a writing.

Residue Clause

Your residue clause is the part of your will in which you make gifts of the residue of your estate. The residue is made up of all your probate assets that remain after your estate’s lawful debts have been paid and your specific, demonstrative, and general gifts have been distributed. Gifts of the residue are general, meaning beneficiaries of the residue have a right to their fractional share of the residue, but not to any specific item or assets that are part of the residue. For example, if a will says that the residue is to be shared equally by the testator’s three children, each child will receive a one-third share of the value of the residue, but none of the children will have a right under the will to demand a particular lamp, ornament, rug, or motorcycle. Some property may need to be sold to make it easier to distribute the residue evenly; this is especially likely when the residue contains individual assets with high value, like a home and vehicles.

If all of the beneficiaries identified in your residue clause have failed to survive you, then the residue will be distributed to your heirs in the same manner as if you had died intestate. If you want to prevent this result, you will need to add contingent beneficiaries in your residue clause to receive the residue in the event your primary beneficiaries fail to survive you. (Contingent beneficiaries are discussed in greater detail, below.) It is not uncommon for a testator to list a charity as a final contingent beneficiary to receive the residue in the event all the other listed beneficiaries fail to survive.

It is common for a gift of the residue to be the only gift in a simple will. For example, married testators often execute mirror wills in which both spouses make a gift of all of their residue to their surviving spouse, with contingent beneficiaries listed in case the spouse does not survive. Like other gifts, gifts of the residue should be written using customary phrasing. We provide model language in the Customary Phrasings for Gifts section, below.

Community Property and Separate Property

If you are married or a state registered domestic partner, then you own a combination of separate property and community property. You might also own some quasi-community property. If you are single, your property is probably mostly separate property, but you might also own some community-like property. Read through the descriptions of these property types carefully to get an idea of how your property will be characterized.

With limited exceptions (such as awards of family support, described below) Washington State law permits you to use your will to give away 100% of your separate property probate assets. However, you can only give away your one-half share of your community property and quasi-community property probate assets. The other one-half share of community property and quasi-community property probate assets belongs to your spouse or registered domestic partner; it is not yours to give away.

If you are single, but have been in a relationship that might have given rise to community-like property, then the other person in that relationship may have a claim against your estate for their share of the community-like property. As you might expect, your will cannot be used to distribute property that a court determines to belong to someone else.

Keeping all of this in mind, think carefully about what you own. Remember that you can give away all of your separate property probate assets, but you can only give away one-half of your community property, quasi-community property, and community-like property probate assets.

To keep yourself organized, you may find it helpful to write down all of your property in a list with two columns, listing separate property in one column and community property in another column. The list can be a helpful reminder about what you are and are not allowed to give away in your will. If you are unsure whether an asset you listed is community property or separate property, we recommend you ask a lawyer for guidance on how to characterize the asset.

Probate Assets and Nonprobate Assets

When you die, every item of your property will fall into one of two categories: probate assets or nonprobate assets. Your simple will will only be used to give away your probate assets, not your nonprobate assets. Take some time now to read about both kinds of property and get a clear idea of how each item of your property will be characterized.

Note that the difference between probate assets and nonprobate assets is completely unrelated to the difference between separate property and community property. For example, you might have

• some community property probate assets,
• some community property nonprobate assets,
• some separate property probate assets, and
• some separate property nonprobate assets.

To make this easier to think about, remember that your nonprobate assets, whether community or separate, will not be distributed (or even mentioned) in your will. That means when writing your will, you only need to address your separate property probate assets and your community property probate assets.

This may leave you wondering how your nonprobate assets are going to be distributed when you pass away. One of the features of all nonprobate assets is that they all have their own rules that control how they are distributed when their owner passes away. Some nonprobate assets, such as life insurance policies, allow the owner to designate beneficiaries to receive the property upon the owner’s death. Some nonprobate assets, such as real estate held as a life estate or under a transfer on death deed, are distributed according to the terms of the written instrument that created the right to the property in the first place.

It is important that you think of how your nonprobate assets will be distributed when you pass away, as this may impact how you decide to distribute your probate assets in your will. To the extent that you own nonprobate assets, we recommend you take all necessary steps to understand how they will be distributed at your death, and make any changes to beneficiary designations on your nonprobate assets that you wish to make. These instructions do not provide any guidance on how to change beneficiaries or otherwise control who will receive your nonprobate assets when you pass away. If you have any doubts about how to go about changing the distribution of any of your nonprobate assets, we highly recommend that you contact a lawyer for assistance.

If you are keeping a two-column list of your separate and community property, you should also take the time now to characterize every item of property on the list as either a probate asset (by marking it with a P) or nonprobate asset (by marking it with NP). If you are unsure whether an asset you listed is a probate asset or nonprobate asset, we recommend you ask a lawyer for guidance on how to characterize the asset.

Intestacy

If you die without a valid will, you are said to have died intestate, and your property will be distributed to your heirs under the laws of intestacy. Similarly, if you have a valid will, but the will fails to give away all of your probate assets (which would happen, for example, if all of your named beneficiaries fail to survive you), then the undistributed probate assets will be distributed according to the laws of intestacy. To prevent this result, you will include a residue clause in your will that gives away all of your undistributed probate assets, and which addresses the possibility of your named beneficiaries failing to survive you.

Abatement

After you die, your creditors will have the right to be repaid out of the property of your estate. Moreover, the law provides an order of payments from an estate that requires creditors to be repaid before your beneficiaries receive any gifts. The limited exception to this rule is found in the family support statute.

After your creditors are repaid, it is possible that your estate will not have sufficient assets to honor all of the gifts in your will. When this happens, some (or all) of the gifts are reduced in a process called abatement. If abatement is required, some (or all) of your beneficiaries will receive a smaller gift than what is written in your will, or perhaps even no gift at all.

Ademption

If you write a specific gift of an asset into your will, but you no longer own the asset at the time of your death, then the gift will fail. This is called ademption. Ademption can lead to unwanted (possibly disastrous) results if gifts are poorly planned. For example, a testator might make a specific gift to his friend of the house he owns at the time he makes his will. Imagine the testator later sells the house and buys a new one. If the testator then died without updating his will, he would no longer own the house identified in the will, the gift would fail by ademption, and his friend would not receive it.

Typically, the property a testator owns will change over the course of time. After a will is made, the testator may buy and sell real estate, vehicles, and other significant assets. Because of ademption, this change in assets over time will eventually cause some specific gifts of these kinds of assets to fail. Accordingly, we recommend that you use your residue clause to distribute significant assets like these. If you nevertheless decide to make specific gifts of these kinds of assets, you may need to update your will frequently to account for the effects of ademption.

Undue Influence

If you make your will while under undue influence, your will might be invalidated in whole or in part in a will contest. Will contests are generally very expensive, largely due to fees the estate, beneficiaries, and other parties must pay their attorneys. Will contests defeat one of the main purposes of making a will, which is to avoid the enormous expense and pain of a dispute after your death about how your estate should be distributed. Therefore, it is important to avoid undue influence when you make your simple will. If after reading about undue influence you believe that those who survive you may claim you made your will under undue influence, you should consult with a lawyer before continuing to use these instructions.

No-Contest Clause

Sometimes beneficiaries under a will decide to challenge the will in a will contest. Often such a challenge is made to increase the value of the property the beneficiary would receive under the will. As we have said before, will contests can be very expensive. The expenses of a will contest can deplete the value of the estate for all of the beneficiaries. One way of discouraging a person to whom you are leaving a gift in your simple will from bringing a will contest is to include a no-contest clause. Whether you include a no-contest clause in your simple will is up to you. Just in case, our simple will template includes model language for a no-contest clause.

Lapse and Anti-Lapse

If you write a gift in your simple will to a person who fails to survive you, that person obviously cannot receive the gift; instead, there are a few possible outcomes for that gift. If the simple will identifies a contingent beneficiary for that gift and the contingent beneficiary survives you, then the contingent beneficiary will take the gift. (Contingent beneficiaries are described in more detail, below.) If all beneficiaries of a gift (including contingent beneficiaries) fail to survive you, then the gift will lapse, which means it will be distributed to surviving beneficiaries under the residue clause.

There is an exception created by the anti-lapse statute, however, where such a gift will not lapse. The exception is narrow and a bit difficult to grasp at first glance, so take your time with it:

• If you write a gift into your will for a specific named beneficiary, and
• the gift is not conditioned on the beneficiary surviving you, and
• the beneficiary is a descendant of your grandparents, and
• the beneficiary fails to survive you, and
• the beneficiary leaves surviving descendants of his or her own,

then the beneficiary’s living descendants will inherit the gift in the beneficiary’s place, taking their shares by right of representation.

Are you confused? Let’s unpack this a bit.

Let’s say that you write a gift into your will to a person without including any instructions for who should get the gift if the person you named fails to survive you. Let’s also say the person is your sister (though your aunt, cousin, nephew, or any other descendant of your grandparents would count). Then imagine that your sister passes away before you do, though your will still includes the gift to her. Finally, imagine that your sister’s children or grandchildren are alive when you pass away. In that scenario, your gift would not lapse. Instead, your sister’s living descendants would get the gift.

The lapse and anti-lapse rules in Washington lead to complexity that our simple will template and the model wording we provide are designed to avoid. If you use our simple will template and follow our strong recommendation that you use only the customary phrasings for gifts that we provide, then the anti-lapse statute will not be applied to any gifts in your will when a beneficiary fails to survive you. Instead, you will have decided who will receive the gift in place of the beneficiary you named and will have named that contingent beneficiary in your simple will.

Gifts to Minors

When property is distributed to beneficiaries in a probate proceeding in Washington State, a statute (RCW 11.76.095 ) allows any of three possible methods for distributing property allocated to minors (beneficiaries under age 18):

1. If the property is money, it can be deposited into an insured account from which it can only be withdrawn by order of the court, or when the minor beneficiary has reached age 18;
2. The court can appoint a guardian to hold the property for the minor beneficiary; or
3. The testator can name a custodian to hold the property in custodianship for the beneficiary under the Uniform Transfers to Minors Act (RCW Chapter 11.114 ).

When making gifts for which a beneficiary is (or could possibly be) a minor, our recommendation is always to use the third option, a custodianship. (In fact, a testator can require that a custodianship be used for gifts to older beneficiaries as well, up to age 25.) We make this recommendation for several reasons.

Unlike the first option, a custodianship delays the minor’s receipt of the gift until age 21 and allows you to delay the gift to as late as age 25. More importantly, a custodian has the flexibility to use the custodial property for the benefit of the minor, whereas money deposited under the first option cannot be used for a minor’s benefit without a court order.

Unlike a guardian appointed by the court in the second option, a custodian can be named, and a custodianship can be created, without a court order. Creating a custodianship is therefore usually much less expensive than using a guardian.

A fourth option, not listed in the statute, for leaving property to a minor is giving the property to a trust for the benefit of the minor. Drafting a trust is beyond the scope of what a simple will can do. If you decide you want a trust instead of a custodianship for distributing property to a minor beneficiary, then you should contact an attorney to help you prepare the trust.

Our simple will template includes the necessary language to create any required custodianships, to choose who you want to become the custodian, and to extend the distribution of custodial assets to as late as age 25.

Awards of Family Support

Under Washington State law, if you are survived by a spouse, state registered domestic partner, or your children, they may have the right to a significant family support award from your estate. Their right to petition for an award of family support is independent of the terms of your will, which means they may have the right to such an award even if you intentionally disinherit them in your will. Moreover, any such award can be taken from your community property or your separate property, in the discretion of the court.

There are complex nuances to the family support statute and related law from court cases. Here are a few examples:

• If your spouse or state registered domestic partner survives you and chooses not to petition for family support, then none of your children can petition for family support.
• If your spouse or state registered domestic partner survives you and petitions for family support, then your children from past relationships (whether they are minors or adults) can demand to share any family support award with your surviving spouse or state registered domestic partner.
• If your spouse or state registered domestic partner does not survive you, your minor children can petition (through a guardian) for family support. In such a scenario, the law is still unclear as to whether your surviving adult children could demand to share any family support award with your surviving minor children.
• The court can decide to increase or decrease the amount of the award, depending on factors listed in the family support statute.

Whether your surviving spouse, state registered domestic partner, or children decide to petition for an award of family support is up to them, and there is only a little you can do with your will to discourage them from doing so. Fortunately, one factor a judge can consider when deciding the amount of an award of family support is how much property has already been given to the petitioner in the will itself. The judge can reduce the amount of the award by as much as the amount the petitioner will receive under the will. In this way, by making an adequate gift of your property to your spouse, state registered domestic partner, and children in your will, you can reduce the likelihood that they will receive an award of family support from your estate.

Accordingly, if you have a spouse, state registered domestic partner, and/or children (or plan to have them some day), our recommendation is to give each of them at least as much property under your simple will as they would receive if they were to petition for family support.

Disinheriting

Disinheriting a person means taking steps that prevent the person from inheriting property from you. If you die without a will, your property is distributed according to the laws of intestacy. If you make a will that says that a person who would have inherited from you through intestacy will get nothing, then you have disinherited that person with the will. That’s okay; choosing who will and won’t inherit from you is one of the main reasons to make a will.

Disinheriting somebody is often as simple as just not providing any gifts for them in your will. For example, if a testator dies survived by his spouse and children, and the testator’s will says that he gives all of his property to his surviving spouse, then he has disinherited his children. (Had he died without a will, his children would have inherited some of his separate property under the laws of intestacy, but because of his will, his children will get nothing.) Stated another way, you should make sure to write gifts into your will for any people you want to be sure will inherit something from you.

Disinheriting a Spouse or State Registered Domestic Partner

Complications arise, however, in the rare circumstance when a testator wants to disinherit his surviving spouse or surviving state registered domestic partner. The difficulties come from the family support statute and the omitted spouse statute.

As you read, above, a surviving spouse or state registered domestic partner has the right to petition for an award of family support. Thus, even if a testator leaves no gift in his or her will to his or her spouse or state registered domestic partner, the surviving spouse or state registered domestic partner can demand a family support award. This means that the surviving spouse or surviving state registered domestic partner will receive some of the testator’s property even if the testator tried to leave them out of his or her will.

Moreover, as you read earlier, if a testator makes a will that fails to name or provide for a person who later becomes his or her spouse or state registered domestic partner, and then the testator dies without ever updating his or her will, then the person is likely to be deemed to be an omitted spouse or omitted domestic partner. An omitted spouse or omitted domestic partner will likely inherit what he or she would have received under the laws of intestacy had the testator died without a will. Again, the spouse or state registered domestic partner will inherit even if the testator intentionally left him or her out of the will.

Because of these laws, especially the family support award law, it can be very difficult to disinherit a spouse or state registered domestic partner. There are legal mechanisms that a person may be able to use to disinherit his or her spouse or state registered domestic partner, but a simple will is not an effective way to go about it. If you decide you want to disinherit your spouse or state registered domestic partner, we strongly recommend that you make an appointment to talk with a lawyer instead of attempting to carry out this effect using a simple will.

Disinheriting Children

Complications can also arise when a person tries to disinherit his or her children by leaving them out of a will. The difficulties come from the omitted child statute and the family support statute.

If a testator makes a will that fails either to name or make provisions for his after-born and after-adopted children, he later has or adopts a child, and then he passes away without ever updating his will, the after-born or after-adopted child may be considered an omitted child. Omitted children may inherit what they would have received under the laws of intestacy if their parent had died without a will. This means that even if the will says nothing about any gifts to such children, omitted children might inherit something from the testator.

We have included language in the simple will template in an effort to “name” your after-born and after-adopted children with the goal of avoiding a court characterizing any of your children as omitted children. If you leave that language in your simple will, but choose not to make a gift in the will to children you have or adopt after you make the will, then those children are not likely to inherit as omitted children. Whether or not you believe you will ever have or adopt children after you make your will, our recommendation is to make your intentions with respect to after-born and after-adopted children clear. You can do so by either including a gift in your will for such children or stating outright that you are leaving nothing to them. (By leaving property to your “descendants” you can include a gift in your simple will to your children who have not even been born or adopted yet.) Making your intentions clear will help prevent the omitted child statute from applying.

Preventing children from taking a family support award is a bit more complicated. If a testator’s spouse or state registered domestic partner survives the testator and chooses not to petition for an award of family support, then none of the testator’s children will be able to take a family support award. However, if the surviving spouse or state registered domestic partner petitions for family support, then any of the testator’s children who are not also the surviving spouse’s or state registered domestic partner’s children can petition to share the family support award with the surviving spouse or state registered domestic partner. This means that even if the testator intentionally leaves nothing to his or her children from past relationships in his or her will, those children might inherit from him or her. To avoid this result, a testator can encourage his or her spouse or state registered domestic partner not to file such a petition by making sure to give a significant gift in his or her will to the surviving spouse or state registered domestic partner.

If a testator dies while single, or if the testator’s spouse or state registered domestic partner fails to survive the testator (for example, if they die nearly simultaneously), then the testator’s minor children from any relationship will have the right to petition for an award of family support. By doing so, the children may inherit from the testator even if the testator intentionally left them nothing in his or her will. It is very difficult to disinherit children under these circumstances. There may be legal mechanisms that would make it possible to do so, but a simple will is not an effective way to go about it. If you decide you want to disinherit your minor children in the event you are not survived by a spouse or state registered domestic partner, we strongly recommend that you make an appointment to talk with a lawyer instead of attempting to carry out this effect using a simple will.

Contingent Beneficiaries

A contingent beneficiary is a beneficiary who will only inherit a gift if one or more other named beneficiaries fail to survive the testator. In other words, a contingent beneficiary is a backup or alternate beneficiary.

You may name contingent beneficiaries for all of the gifts in a simple will. You may also list multiple contingent beneficiaries for any single gift. Remember that if the primary and all contingent beneficiaries of a specific, demonstrative, or general gift fail to survive you, then the gift will either fail to lapse under the anti-lapse statute (see Lapse and Anti-Lapse, above), or it will lapse and become part of the residue of your estate to be distributed to the beneficiaries under your residue clause. Further, if all the primary and contingent beneficiaries under the residue clause fail to survive you, then the residue of your estate will be distributed according to the laws of intestacy.

There are a few legal phrases which are very commonly used in will-drafting to create specific types of contingent beneficiary schemes. Those phrases include “if he/she survives me,” “by right of representation,” “per capita at each generation,” and “share and share alike.” We strongly recommend that you familiarize yourself with the meaning of each of these phrases, making sure you understand how each phrase differs from the others.

For every gift in your simple will, we recommend that you name as many contingent beneficiaries as necessary to ensure that the gift will be given to the beneficiary or beneficiaries you would want to receive it under whatever the circumstances happen to be at the time of your death. For each beneficiary of each gift, you should ask yourself: Who should receive this gift if the currently named beneficiaries all die before I do? If the answer to that question is a beneficiary other than your heirs in intestacy, you should add the answer as the next contingent beneficiary of the gift. It is very common to name a charity as the final contingent beneficiary of a gift. It is also very common to list very few (even zero) contingent beneficiaries when the testator would be comfortable with a gift being distributed as part of the residue, or with the residue being distributed under the laws of intestacy.

Here are a few examples of phrasings you can use to create gifts both with and without contingent beneficiaries.

Gifts: Specific gift with no contingent beneficiaries

In the above example, no contingent beneficiaries are named, which means that if Mary Roe fails to survive the testator, the gift of the coin collection will lapse, and the collection will become part of the residue of the estate.

Gifts: Specific gift with no contingent beneficiaries, with anti-lapse possibility

The above gift looks the same as the one before it, except this time the beneficiary is a descendant of the testator’s grandparents. That little difference means this gift is subject to the anti-lapse statute. If Jane Doe fails to survive the testator, but has descendants who survive, then the descendants will inherit the coin collection. As you can see, the anti-lapse statute operates to create contingent beneficiaries.

Gifts: Specific gift with no contingent beneficiaries and no anti-lapse possibility

This gift looks similar to the previous one, except now the gift is conditioned on the sister surviving the testator. Because of how “survive” is defined in our simple will template, this gift will lapse if the sister fails to survive.

Gifts: Specific gift with multiple contingent beneficiaries

In the above example, Jane Doe will get the coin collection if she survives the testator. Mary Roe will inherit the collection only if Mary Roe survives and Jane Doe fails to survive. The testator’s descendants will only inherit the coin collection if both Jane Doe and Mary Roe fail to survive. Finally, if Jane Doe, Mary Roe, and all of the testator’s descendants fail to survive, the coin collection will become part of the residue of the estate.

Disclaimer

A beneficiary is not required to accept a gift from you under your will; he or she may instead disclaim the gift. When a beneficiary properly disclaims a gift from a will, for purposes of determining who will get the gift instead, the beneficiary is treated as having failed to survive the testator.

For purposes of writing your simple will, you should consider whether any of your beneficiaries might disclaim your gift(s) and make sure to include contingent beneficiaries in case they do.

Putting Conditions on Gifts

In the definition of a simple will, we explain that a simple will can include unrestricted gifts, but cannot include any restricted gifts. This does not mean that you cannot put any conditions whatsoever on gifts in a simple will. On the contrary, some conditions are perfectly acceptable in a simple will. A condition on a gift is allowed in a simple will if the condition will necessarily have been satisfied or not satisfied by the time shortly after the testator dies. Perhaps the most common condition on gifts in a simple will, and one you have seen several times already, is requiring that the beneficiary survive the testator for the gift to be valid.

Gifts: Survival, a common condition on a gift in a simple will

Requiring a beneficiary to have survived as a condition on a gift is acceptable because the condition will necessarily have been satisfied or not satisfied by the time shortly after the testator dies. In other words, using the above example, Jane Doe will either have survived or failed to survive the testator as soon as the testator has died.

If you want to place a condition on a gift in your will and have any doubt about whether the condition is one that can be included in a simple will, we recommend that you contact a lawyer and ask.

Gifts to People You Have Never Met (Such as Your Descendants)

Many testators make gifts in their wills to their descendants, which means they have made a gift to people they might have never even met. The word “descendants” includes the testator’s children, grandchildren, great grandchildren, etc., including those who are born or adopted after the date the will is executed. The people who are included as the testator’s “descendants” for purposes of inheriting under a will are determined as of the date of the testator’s death. Since children, grandchildren, and great grandchildren can be born/adopted or die after the date the will is made, the people who the testator thinks of as his or her descendants on the date he or she executes a will could be very different from the people who end up being his or her descendants as measured on the date he or she dies.

Gifts to people you have never met, including your unborn descendants, are subject to a law known as the rule against perpetuities (RAP). The RAP looks simple at first, but this appearance is deceptive. The RAP can be quite complicated when applied to a set of real world facts, and it has been the source of a great deal of confusion, even for lawyers who regularly practice trusts and estates law. A gift that violates the RAP will fail, and its inclusion in your will may lead to expensive and unnecessary litigation. Because of this, our recommendation is that you not make any gifts to people you have never met except by using one of the model phrases we provide in these instructions.

For gifts to your descendants who are not born or adopted by the date you make your will, you should designate that the gifts are to be distributed to your descendants either by right of representation or per capita at each generation, depending upon which of these methods of distributing property is more appealing to you. For gifts to any other person’s descendants who are not born or adopted as of the date you make your will, you should likewise designate that the gifts are to be distributed to such person’s descendants either by right of representation or per capita at each generation.

If you feel inclined to give a gift in your simple will to someone whose identity you do not know, other than your descendants or some other real person’s descendants, we highly recommend that you contact a lawyer for help with phrasing the gift.

Gifts Shared by Multiple Beneficiaries

It is quite common for a will to contain a gift to be shared equally by two or more people. These kinds of gifts can be very straightforward, as long as all of the people who are named to share in the gift survive the testator. Serious problems can arise, however, when someone who was supposed to share in the gift has died before the testator does. In such a case, questions pop up: Does the deceased beneficiary’s share get split among the surviving beneficiaries, or does it go to somebody else, such as the deceased beneficiary’s descendants? A well drafted gift should always indicate who should receive the gift if a beneficiary has died. We provide model language, in the Customary Phrasings for Gifts section, below, for several methods of giving gifts to multiple beneficiaries.

To illustrate this point, here is an example of a poorly written gift to multiple beneficiaries.

Gifts: Example of a poorly written general gift to multiple beneficiaries

In the above example, if Clara has died before the testator does, it is unclear who will get Clara’s share of the furniture. Since Clara is the testator’s sister, her living descendants might inherit her share under the anti-lapse statute. Even if she has no living descendants, it is not clear whether Clara’s share should go to Molly or become part of the residue. The better way to draft this gift would be to make it clear what should happen to the gift if either beneficiary were to die. For example, if the testator would have wanted the survivor to get all of the furniture in the event one of the beneficiaries had died, then the testator should have used the share and share alike designation.

Gifts: Example general gift to multiple beneficiaries, share and share alike

Under the share and share alike designation, it is clear that Molly gets all of the furniture if she survives and Clara doesn’t survive. Of course, share and share alike is only one of several customary phrasings that could be used to give a gift of furniture, and the testator is free to choose any of the customary phrasings to suit his or her purpose. Regardless of the phrasing the testator uses, what’s important is that the testator clearly designate what should happen when a beneficiary fails to survive the testator.

It is also quite common for a will to contain a gift that includes a statement of multiple equally situated contingent beneficiaries. These kinds of gifts must also be well written to avoid confusion when one or more of the contingent beneficiaries has failed to survive the testator. Here is an example of a poorly written gift to multiple contingent beneficiaries.

Gifts: Example poorly written general gift to multiple contingent beneficiaries

In the above example, if Gerald and Jeffrey fail to survive the testator, then it is unclear whether Louisa would inherit all of the furniture, or if she would simply inherit half, with Jeffrey’s share becoming part of the residue. Assuming the testator would have wanted Jeffrey’s share to become part of the residue, the gift would have been better written like this:

Gifts: Example general gift to multiple contingent beneficiaries

In the above example, Jeffrey is only allocated one-half of the furniture, conditioned on his survival. Thus, if Gerald and Jeffrey have both passed away, Louisa will get one-half of the furniture, and the gift of one-half of the furniture allocated to Jeffrey will lapse.

Customary Phrasings for Gifts

There are many ways that testators (or their lawyers) have phrased gifts in wills over the years. To keep things simple, we have narrowed down those many phrasings to just a handful of customary phrasings for you to choose from when writing a simple will. We strongly recommend that you only use the customary phrasings we provide here. If you decide to write a gift using a phrasing not found here, we suggest you talk with a lawyer about your choice before executing your will.

Phrasing Specific, Demonstrative, and General Gifts

Every gift in your simple will, other than gifts of the residue, should begin by following one of the following formats for a specific, demonstrative, or general gift.

The phrasing of a specific gift should begin by following this format:

Gifts: Format for specific gifts

The phrasing of a demonstrative gift of property other than money should begin by following this format:

Gifts: Format for demonstrative gifts other than money

The phrasing of a demonstrative gift of money should begin by following this format:

Gifts: Format for demonstrative gifts of money

The phrasing of a general gift of property other than money should begin by following this format:

Gifts: Format for general gifts other than money

The phrasing of a general gift of money should begin by following this format:

Gifts: Format for general gifts of money

Note that every demonstrative or general gift of an amount of money should follow the customary phrasing, below, for gifts of specific amounts of money.

Names of Beneficiaries

When writing a gift to a particular person, we recommend you use the person’s full legal name and also state how the person is related to you. Do not write a gift using the beneficiary’s nickname or any shortened version of their name. Using beneficiaries’ full legal names helps eliminate confusion for those who will have to find your beneficiaries and distribute gifts to them. If possible, we recommend including beneficiaries’ middle names. If you do not know the full legal name of a beneficiary, we recommend you find out what it is before including a gift for the beneficiary in your will.

Use the following structure for identifying beneficiaries by name:

Gifts: Structure for identifying beneficiaries by name

Here is an example of wording for a gift to a sibling using the sibling’s full legal name and clearly identifying the relationship of the sibling to the testator:

Gifts: Naming a sibling as beneficiary

Here is an example of wording for a gift to the testator’s friend Jack, whose full legal name is John Joseph Smith:

Gifts: Naming a friend as beneficiary

If you believe there may be some confusion about who your beneficiary is when his or her name is common, you may consider also including the beneficiary’s date of birth as an additional identifier.

Gifts: Naming a beneficiary, including a date of birth

Naming Charities or Businesses

As with gifts to people, we also recommend you use the full legal name of any charity or other business entities to which you wish to leave gifts in your will. With charities and businesses, you should also try to include, if possible, the type of organization (for example, a not-for-profit corporation, a limited liability company, etc.), the state where the business was originally formed, and the address of its principle office. Many charitable organizations provide this kind of information on their websites, often on a page about planned giving. In some instances, you may need to contact the charity or business to ask for this information.

When writing a gift to a charitable organization or other business entity, follow this structure:

Gifts: Naming a charitable organization as beneficiary

Here is an example of a gift given to a hypothetical charity:

Gifts: Example of naming a charitable organization as beneficiary

When Not to Use the Full Legal Name of Beneficiaries

Whenever writing a gift to a particular group of beneficiaries, such as to a person’s “descendants,” “children,” “parents,” or any other clearly defined group of beneficiaries, you should not list the names of the individuals who are part of that group in the gift. Instead, you should merely write that you give the gift to that group.

For example, a testator who wishes to give a baseball card collection, share and share alike, to the children of his friend Arnold Philip Jackson, should write the gift like this:

Gifts: Naming a group of beneficiaries

Gifts of Specific Amounts of Money

When writing a specific, demonstrative, or general gift of a specific amount of money, the dollar amount should be written out using words. Optionally, the written-out wording of the dollar amount can be followed by the dollar amount written numerically inside parenthesis. Here is an example:

Gifts: General gift of specific amount of money

Gifts of Real Estate

We recommend against giving away real estate using a demonstrative or general gift to do so. If you decide to give a specific gift of a probate asset consisting of real estate, you will need to identify the land by its address (if it has one), county parcel number, and legal description. The legal description should be written in all capital letters in its own separate paragraph, with the whole paragraph indented on the left. Use the following structure to make specific gifts of real estate:

Gifts: Specific gift of real estate

Giving Away the Residue

When you write the gift or gifts of the residue of your estate, call the residue the “rest, residue, and remainder of my estate.”

Gifts: Giving the residue

Creating Contingent Beneficiaries

For each gift in your simple will (whether specific, demonstrative, general, or residual), use these customary phrasings to designate the contingent beneficiaries.

Survival

To write a gift to one person on the condition that the person survive you, write “if he survives me” or “if she survives me” at the end of the gift statement, like this:

Gifts: Customary phrasings, survival

Share and Share Alike

To write a gift to multiple beneficiaries share and share alike, write that you give the gift “share and share alike” before listing the beneficiaries, like this:

Gifts: Customary phrasings, share and share alike

Per Capita at Each Generation

To write a gift to your descendants or another person’s descendants per capita at each generation, write “per capita at each generation” at the end of the gift statement, like this:

Gifts: Customary phrasings, per capita at each generation

By Right of Representation

To write a gift to your descendants or another person’s descendants by right of representation, write “by right of representation” at the end of the gift statement, like this:

Gifts: Customary phrasings, right of representation

Dividing a Gift into Unequal Shares for Multiple Beneficiaries

Occasionally a testator will want to give a probate asset or his residue to multiple beneficiaries in unequal amounts. For example, a testator may wish to give 75% of his residue to his sister and 25% to his brother, or he may want to give one-tenth of his residue to a charity with the rest going to his descendants. The designations share and share alike, per capita at each generation, and by right of representation cannot be used to divide a gift into fractions or percentages like this. However, it is possible to make these kinds of fractional gifts in a simple will and still use the customary phrasings we provided above.

The way to do it is to divide the asset into fractions (not percentages) and think of each fraction as a separate gift. If a testator wants to give 75% of his residue to his sister and 25% to his brother, then he is really giving two gifts: one gift of three-fourths (75%) of his residue, and another gift of one-fourth (25%) of his residue. Both of these gifts would need to be written out separately in his will, as in the following example:

Gifts: Fractional gifts

Dividing an asset or the residue into fractions, as in the above example, can quickly add a lot of complexity to a simple will. We recommend doing so cautiously and that you contact a lawyer with any questions you have about getting the wording just right.

Structuring Gifts with Contingent Beneficiaries

A gift with contingent beneficiaries is written as a series of sentences. The first sentence will state that the gift will go to your first choice of beneficiary or beneficiaries. The second sentence will state who will receive the gift if your first choice of beneficiary or beneficiaries fails to survive you. The third sentence will state who will receive the gift if the beneficiaries who were your first and second choice fail to survive you. This process of adding sentences will continue until you have written sentences to address all of the contingent beneficiaries for the gift.

You can think of each sentence as a possible last step in the process of determining who will receive the gift. If the gift can be given to the beneficiaries named in the first sentence, then the second and subsequent sentences will have no effect. If the beneficiaries named in the first sentence fail to survive you, but the gift can be given to the beneficiaries in the second sentence, then the third and subsequent sentences will have no effect. The following model language shows how this looks in practice:

Gifts: Structuring gifts with contingent beneficiaries

The following is an example of a gift with several contingent beneficiaries, ending in a gift to a hypothetical charity:

Gifts: Example of structuring gifts with contingent beneficiaries

Feeling Lost?

After reading everything to this point, you may be feeling a sense of information overload. We introduced a lot of complex rules and ideas, and we expect most readers will need to review the material more than once (maybe quite a few times) before feeling like they understand all of it. We encourage you to take as much time as you need to reach a point where you feel you really understand the ideas we explored before you start writing any gifts in your simple will.

If any of this material still does not make sense to you after reading it multiple times, then you should ask a lawyer for clarification. (You can even ask us; we might use your feedback to improve the writing here.) We strongly suggest that you not attempt to write any gifts in your simple will if you do not understand all of the above information.

Write Your Gifts

Open your copy of the simple will template and locate the section heading GIFTS. You will see that there is already some model language drafted under that heading. You will modify or delete that language according to the below instructions.

Gifts of Tangible Personal Property in a Separate Writing

If you have decided you want to keep a writing separate from your will to give gifts of your tangible personal property, you will add a reference in your simple will to that writing now. If on the other hand you decided not to keep such a writing, then you will need to delete the language about the separate writing from your copy of the simple will template.

Keeping a Separate Writing

If you are keeping a separate writing, you need to indicate in your simple will where the separate writing will be stored. Find the paragraph with the heading Tangible Personal Property. Replace the bracketed text with your description of where your separate writing will be stored.

Gifts: Separate writing for tangible personal property

Not Keeping a Separate Writing

If you are not keeping a separate writing to make gifts of tangible personal property, then simply erase the entire paragraph with the heading Tangible Personal Property from your copy of the simple will template.

Write Specific, Demonstrative, and General Gifts in the Will

If you want to make any specific, demonstrative, or general gifts in your simple will, you will add them now. Each such gift will be its own numbered paragraph under the heading GIFTS. Start with number 4.2 if you already used paragraph 4.1 to describe a writing to give away tangible personal property; otherwise start with 4.1.

Remember that you should not attempt to give away any nonprobate assets or more than your share of community property assets in your will. Write your specific, demonstrative, and general gifts now.

Gifts: Layout of specific gifts

When you have finished writing out all of your specific, demonstrative, and general gifts, move on to writing the residue clause.

Write the Residue Clause

You will write your gift(s) of the residue of your estate also under the heading GIFTS, underneath any paragraphs you have already written for specific, demonstrative, and/or general gifts. Continue the same numbering pattern for your paragraph numbers. If you decided not to keep a separate writing to give away tangible personal property and not to make any specific, demonstrative, or general gifts, then the first paragraph of your gift(s) of the residue will be numbered as 4.1.

Gifts: Layout of the residue clause

Write the Gifts to Minors Clause

Now locate the paragraph entitled Gifts to Minors, which should be immediately after your paragraph(s) giving gift(s) of the residue. Number the Gifts to Minors paragraph so it has the next number after your final paragraph giving a gift of the residue. (For example, if your final paragraph giving a gift of the residue was 4.9, your Gifts to Minors paragraph should be numbered 4.10.) You should leave the model language under this heading in place even if you believe it would be impossible for any person under 18 years of age to become a beneficiary under your will.

Gifts: Gifts to minors clause

Our model language indicates that only gifts to beneficiaries who are under 18 years of age will be placed in custodianships. You can modify this language to require custodianships for gifts to beneficiaries as old as 25 years old. To do so, change the age “eighteen” to show the age you prefer, which must be an age between 18 and 25. In the following example, the age has been extended to age 25.

Gifts: Gifts to minors clause extended to beneficiaries under age 25

Write the No-Contest Clause

Find the paragraph entitled No-Contest, which should be immediately after the paragraph entitled Gifts to Minors. If you have decided not to include a no-contest clause in your will, you should now delete this entire paragraph.

If you have decided to include a no-contest clause, you need to decide whether your want the clause to apply to all of the beneficiaries or to one or more specific beneficiaries. Use the following language to make the no-contest clause apply to all of the beneficiaries:

Gifts: No-contest clause applicable to all beneficiaries

Use the following language to make the no-contest clause apply to just one specific beneficiary:

Gifts: No-contest clause applicable to just one beneficiary

If you want the no-contest clause to apply to two or more specific beneficiaries, use the following language:

Gifts: No-contest clause applicable to two or more beneficiaries

Example Gifts

Below are hypothetical scenarios of testators’ wishes concerning gifts, followed by examples of how those gifts might be written into their wills. Use these examples to get an idea for how the different gifts written into a will might look when completed.

Example: Married with Children; Very Simple Distribution in Mirror Wills

In this example, the testator is married and has young children. She and her husband are making simple mirror wills and want to give all of their property to each other. However, if they die simultaneously, they want to give all of their property to their children. If their children were to fail to survive as well, then they have no preference about who would get their property, so they opt to leave it up to the laws of intestacy. The testator and her husband do not wish to include a no-contest clause in their simple wills. In this scenario, the gifts portion of the testator’s simple will might look like this:

Even though the testator’s children are young, she gave the residue to her descendants instead of just her children, which will ensure that her grandchildren and great grandchildren (etc.) will be able to inherit under this will if she does not update the will over time. Because this is a mirror will, the gifts in the husband’s will should look the same, except the gift in his will should be to his wife.

Example: Single without Children; Separate Writing; Lots of Gifts

In this example, the testator is single and has no children. He wants to keep a separate writing to give away tangible personal property, to give certain specific, demonstrative, and general gifts in his will to adults he knows, and to give everything else to his three adult sisters to split evenly, assuming they survive him. If none of his sisters survive, he does not want their children to inherit anything from him; instead he thinks his property should go to a charity. This testator does want a no-contest clause to apply to all of his gifts. In this scenario, the gifts portion of the testator’s simple will might look like this:

Note that in the above example, the testator properly included the gifts to minors clause even though his will did not include any gifts that would apparently go to any minors. The testator may use the separate writing to give tangible personal property to a minor, in which case the gifts to minors clause would have an important role to play. There is also a very small chance that all of the testator’s named beneficiaries (including the charity) will be unable to take his gifts, which means there is a chance his probate assets would pass to one or more minors under the laws of intestacy.

Once you have finished writing your gifts, go back to the list of instructions.
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