James D. Lynch
Does your will have an apportionment clause?
Updated: Mar 13, 2018
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.