DRAFTING WILLS

 The average couple makes a will to disinherit the kids. The backdrop for a will is the
intestate statute, which is a statute enacted by the state legislature dictating who gets what
in the case that someone dies without a will.
 The goal of drafting is to make it totally unambiguous, so no reasonable person could
draft your intention.
DIVIDE, ALLOCATE, DISTRIBUTE
Hypothetical 1
Suppose a testator wants property to pass to spouse, and, if spouse predeceases him, to X,Y, and
Z in three equal shares. If a member of X,Y, and Z predeceases testator, he wants the property to
pass to such member’s children collectively. X,Y, and Z are totally unrelated to each other, the
testator, or the testator’s spouse.
Solution
1) Divide it into only as many shares as are necessary for computation purposes. “The
executor shall divide my estate for computation purposes into as many equal shares as
there are X, Y, and Z who survive me and X,Y, and Z who predecease me with children
who survive me.”
2) Allocate it for computation purposes. “Then my executor shall allocate for computation
purposes one share to each of X, Y, and Z who survive me and one share to each of X,Y,
and Z who predecease me with children who survive me.”
3) Distribute. “Each share allocated to a living person of X, Y, and Z shall be distributed to
such living person. Each share allocated to a member of X,Y, and Z who predecease me
with children me shall be allocated to the children who survive me in equal shares, but if
only one child of such person survives me then all to such child
a. Too Many Marbles in the bag occurs when we write, “…one share to the children
of X,Y, and Z who predecease me with children who survive me.”
b. To few marbles in the bag occurs when we write, “distribute one share to X,Y,
and Z who survive me and one share to children of X,Y, and Z who predecease
me with children who survive me
Hypothetical Notes
 Problem: “if one or more of X,Y, and Z predeceases me, their share….”
o Must use his or her instead of their.
 Problem: If X predeceases me, his share goes to the surviving members of Y and Z.
o Don’t use survive/surviving unless you clarify who must survive whom, why, and
when.
 Bad words: “share” when it’s not already defined in the instrument (6 million dollar
problem often caused by “share”); “then living”; survive when you don’t say survive
whom, how, when
 Good words: “each” of XYZ; children “collectively”; “should any one X,Y, and Z
predecease”
 Note: we make end-run around allocation problem by firs establishing at the time of
death only as many shares as we need.
TO ISSUE PER STIRPES
Introduction
 Issue can be singular or plural
 Per stirpes means by the branch and essentially is the same as by right of representation.
  Never say per stirpes in equal shares.
Hypothetical 1
 Testator has three children. Child 1 (A) has one child himself (B). Child 2 has two
children. Child 3 has three children. If Child 2 and 3 predecease testator, but Child 1 (A)
does not, if the instrument provides to issue per stirpes, then B gets nothing. A will get ½,
Child 2’s children each get 1/6, and Child 3’s children each get 1/9.
o Problem 1: Suppose testator wants B to get 1/3 instead of 1/6 if Child 1(A)
predeceases testator. We could do divide, allocate, distribute, or would could find
shorter way.
o Solution 1: To my issue per stirpes, with each of my children who survive me and
each of my children who predecease me with at least one child who survives me
shall be the head of his/her stripe.
o Problem 2 : Suppose Child 1 (A) predeceases and testator wants B to get 1/6, or,
if there was total wipeout of his children, then the next level would take equal
shares.
o Solution 2: To my issue per stirpes, with stirpes to be determined at generational
level nearst in degree of kinship to testator where there is at least one warm body.
Mass Statute 190 §3
 Problem: Suppose testator has three children. Child 1 has one children, child 2 has two
children, Child 3 has no children. Chil 1 and 2, but not 3, predecease testator. In reading
sentence (1) of statute, you could argue Child 3 gets 50% and the three children of 2 and
3 get 50%. You can prevent this with divide, allocate, distribute, or issue per stirpes with
proper language.
Equally Near, Equally Dear
 Hint: Divide, allocate, combine, divide, reallocate, distribute
 Solution: My executor shall allocate for computation purposes as if distributed per
stirpes. Then, at each generational level, my executor shall combine for computation
purposes the allocated shares and divide them by the number of people in that
generational level who were allocated a share. Then, reallocate equally a portion of that
share at the generational level to each person who would have taken per stirpes. Then
each such person allocated a share and each such person reallocated a share shall take
that share free and clear of trust.
 UPC §2-106(b) Problems
o Statute contains grammar errors. For example, “among” should be “into.”
o Lacks drafting effort. For example, in “In the same manner” is unclear. It
basically tells leaves the drafters to discern the manner previously described in the
statute. Also, “surviving descendants of the deceased descendants” should be
something like “surviving descendants of the testator.” The present language
leaves forces attorneys to figure out what “the manner previously described”
means.
Dispositive Provisions
 The three general categories of estate property are tangibles, intangibles, and real estate.
 The industry standard is to draft the dispositive provisions by the categories of bequests
and devises. The attorney should first deal with all tangible personal property and real
estate, because only intangibles should really pour over into the trust.
 Tangibles
 o The tangible personal property should pass by a specific bequest.
o Using word other than tangible personal property forces testator to list all such
property. A solution is to provide that “all tangible personal property not
otherwise disposed hereof shall go to my children who survive in shares of
approximately equal value.
 Pecunaries
o Consider providing that executor may satisfy pecuniary bequest in cash or kind,
or party in cash and partly in kind.
 Residue
o Consider providing a cut off of pecunaries in order to preserve residue. I give the
greater of the following two amounts: $X___Y% of the net residue.
o Net residue must be defined, but don’t use “after” in doing so.
o Consider whether you back out value of pecuniary bequest or bake it in when
defining residue.
 Class 10?
DRAFTING TRUSTS
 A trust is a fiduciary relationship with respect to property
 For inter vivos trust you can perform token funding of it by giving one dollar to trust.
You can also transfer property described in scheduled A to B, said property to be held in
trust, for benefit in accordance with following terms. And such other property as may be
added from time to time will be transferred to trustee in accordance with following terms.
 If trust is revocable inter vivos trust where settlor reserves right to revoke, the standard
practice is to make the first dispositive provision for the benefit of settlor. We say During
settlor’s lifetime, settlor retains right to demand income and/or principal. Otherwise,
settlor gives trustee the right to pay income and/or principal to or for benefit of_____.
Any unexpended income shall be added to principal quarterly/annually/etc.
 For elders, trust can provide, If in judgement in trustee I’m unable to handle affairs,
financial or otherwise, trustee may use principal and income for benefit of family.
 For guardians, trust can provide, “Trustee may also exercise his discretion for the benefit of
the guardian’s of the person of the children, such as putting addition on guardian’s house, paying
for domestic help.”
 For when child survives settlor with issue then dies, The following provision shall be
effective when the following conditions are met: 1) the settlor dies 2) the settlor’s spouse
dies, and 3) there are no children who are living and under the age of 25. The trustee
shall divide the trust estate into as many equal shares as there are children living at the
time of the fracture and children who deceased at time of fracture with issue then living.
The trustee shall allocate one trust share to each child living at the time of the fracture
and one collective share to the issue living at the time of the fracture of each deceased
child.