Does your will have an apportionment clause?

An apportionment clause is a clause in a will that specifies how the estate taxes are to be paid.

If a will does not include an apportionment clause, the state law of the testator's domicile will determine the apportionment. This could drastically change the distributions to the beneficiaries that the testator had intended.

For example, some states place the burden of estate taxes on the "residuary" (i.e. after the testator has listed specific gifts in the will, the assets that are left over are known as the residuary). The residuary can be a substantial portion of the testator's assets and therefore may be granted to someone important, such as the surviving spouse or children. In this case, the failure to include an apportionment clause in the will may place the spouse or children in a position of undue hardship if the residuary is solely responsible for the estate taxes.

If you have questions about your will or your will is in need of an update, please contact us and speak to one of our professionals.

A WILL MUST CONFORM TO STATE LAW

A will must meet the requirements of the state in which it was made. Each state has laws on the execution of wills, and while these laws are often similar, they are not always the same. For example, some states allow wills to be handwritten, while others do not. State laws also differ on the placement of the testator's signature (e.g. whether it must be signed on every page, signed only at the end, or signed anywhere on the will).

When making a will, you need to ensure it conforms to the laws set forth in your state. If it does not, it could be deemed invalid, in which case your state's intestate succession laws will determine the distribution of your assets. That may be very different from the way you would have preferred.

What are the requirements for a valid will?

State laws differ, but in general the requirements are:

● Age: The person making the will (known as the “testator”) must be 18 years old or older.

● Capacity: The testator must be of sound mind.

● Intent: The testator must have “testamentary intent” (i.e. the intent to make a disposition upon his/her death, NOT a present disposition or a future lifetime disposition).

● Writing: The will must be in writing.

● Signature: The testator must sign the will.

● Witnesses: If the will is not a holograph, the will must be signed by at least two witnesses. The witnesses must be “disinterested” (i.e. the witnesses cannot also be beneficiaries under the will). The testator must sign the will in the presence of the witnesses.