Having a Baby > Estate Planning Clauses... Of the Non-Santa Kind. Sorry Kids.

Team PV

“So tell me in, like, normal terms which will clauses I need to know.”

Without the dense legal-speak, here are some common clauses you can write into your will. 

Trust Clause

Just because you leave your heirs some cash doesn’t mean you want them making it rain Benjamins at the club every weekend. (Or maybe you do. And that’s cool too.) It’s your money, and by adding a trust clause to your will, you can specify how you want that money spent- or not spent- by your beneficiaries.

Spendthrift Provision

A spendthrift provision is part of the trust clause we just discussed- it prevents creditors from staking a claim on your beneficiary’s newfound funds. Let’s say your Make-It-Rain Benjamin Beneficiary promises to open a club with Joe Promoter. He signs off with Promoter on leases and liquor distributors, promising cash from the trust you set up for him. Benjamin Beneficiary eventually backs out of the deal and Promoter sues him for that trust cash. The spendthrift provision won’t stop Promoter from suing Benjamin, but it won’t allow Promoter to take Benjamin’s trust funds. 

Predecease Clause

This clause also goes by the delightful name of the “Simultaneous Death Clause.” Not creepy at all. Let’s say Amelia and Fred both unexpectedly pass away during a plane crash. Amelia and Fred each had a will naming the other as a beneficiary, as well as a backup, or contingent beneficiary. But since they went down in a plane crash and it’s impossible to figure out which one died first, who gets their assets? Courts generally presumes that the older spouse died first- though this is usually outlined in your predecease clause- so if Amelia is the younger spouse and Fred’s beneficiary, then Amelia’s heirs would inherit Fred’s assets instead of Fred’s contingent beneficiary.

This may not be an issue for you, especially if you and your spouse both name your children as beneficiaries, but this clause is something to keep in mind if neither of you have children or plan on naming any children as beneficiaries. 

No-Contest Clause

A clause worth mentioning if you have particularly difficult family members. If you’re convinced one of your bitter, entitled siblings will challenge your beneficiaries in court if you don’t leave him or her a large chunk of change in your will, a no-contest clause would forfeit that sibling’s potential gift if they challenge the legality of your will.          

Residuary Clause

Think of this clause as a catch-all for your possessions after you designate who gets that antique jewelry box or your vintage motorcycle. This would be the person who gets “everything else.” It could be your surviving spouse, your children, or a close family friend.

 

Photo: Richard Elzey

 

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