Chapter 5 Will Preparation and Drafting

Wills, Trusts, and Estates Administration, 3e Herskowitz 2 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Learning Objectives  Understand the tasks to be completed before a will is drafted  Understand how client information is collected  Understand the ethical considerations a paralegal should follow  Understand the key components of a properly drafted will  Understand the paralegal’s role in will drafting and execution

Wills, Trusts, and Estates Administration, 3e Herskowitz 3 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Information Collected In A Client Interview  What property the client owns and how it is titled  real estate: where it is titled  personal tangible  investments/securities  What are the client’s debts  Who are the client’s family and friends  How does the client want the property distributed  What advance directives might the client want  living will  power of attorney for financial decisions  power of attorney for health care decisions

Wills, Trusts, and Estates Administration, 3e Herskowitz 4 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Important Family Information  Present Spouse, if any  Prior spouse/s, if any  Children, including illegitimate children  If there are minor children, guardian chosen for children, assuming other parent is deceased

Wills, Trusts, and Estates Administration, 3e Herskowitz 5 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Ethical Considerations For The Paralegal During Client Interviews  Confidentiality  ethics rules in all Model Rules and Model Code jurisdictions require paralegals to behave as if they were lawyers, which includes preserving client confidences and other information  No Legal Advice  paralegals may not apply the law to the client’s situation, explicitly or impliedly  No Establishment of Lawyer-Client Relations  included in the UPL prohibitions is that a paralegal may not give such an impression to a prospective client  No Setting of Fees  included in the UPL prohibitions is that a paralegal may not establish a fee arrangement with a client, expressly or impliedly

Wills, Trusts, and Estates Administration, 3e Herskowitz 6 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Key Portions Of A Will  Exordium Clause  Instruction to Pay Debts  Dispositive Provisions  Appointment of Personal Representative  Personal Representative’s Duties  Appointment of Guardian for Minor Children

Wills, Trusts, and Estates Administration, 3e Herskowitz 7 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Final Parts Of A Will  Testimonium Clause  establishes the will’s end  also called the signature clause  Attestation Clause  usually, at least two witnesses are required  Self-Proof Affidavit (Notary Clause)  great idea: helps avoid the problem of needing attesting witnesses  not required by law

Wills, Trusts, and Estates Administration, 3e Herskowitz 8 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Execution Of A Will  The will needs to be signed and witnessed (unless a valid holographic or nuncupative will)  Generally, the testator’s witnesses need to sign in each others’ and the testator’s presence  In many jurisdictions, it is advised that the testator initial the bottom of each page (except in New York, for instance)

Wills, Trusts, and Estates Administration, 3e Herskowitz 9 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Where Should The Will Be Kept?  There is no black letter law on the best location  But, there are possible options:  The lawyer’s office  The personal representative  The client’s safe deposit box  The clerk of the court  The client’s home  Which is the best location??