Deciding Who Gets What – or Who Doesn’t
Section 5, the gift section, is where you bequeath (give) specific things to specific people. The gift section is where you designate who is to receive your property upon your death. This section should include larger items such as your home and any land that you own, bank accounts, boats, and vehicles. It can also include small items such as jewelry, mementos, and family heirlooms. However, in planning specific gifts, you need to consider a few issues.
Can the Gift be given by your will?
The first issue to consider is whether you can even leave the gift in your Will. Much of the property that people own does not pass by the terms of their Will, but rather by the terms of how it is titled. For instance, if both spouses are listed on the title to their home, they hold title as “tenants-by-the-entirety”, which means the surviving spouse automatically gets title to the home. To put it another way, if the title is held jointly by a husband and wife, a spouse cannot leave the home to a daughter if the surviving spouse is alive.
Also, you may have a number of assets controlled by contract terms, such as life insurance, pension plans, IRAs, 401(k), brokerage accounts, bank accounts, and property controlled by a partnership. This sort of property will pass according to the terms of the contract governing the property. You cannot direct who will receive the proceeds of your life insurance through your Will. Rather, you must name a beneficiary directly through the insurance company, usually by completing a specific form for that purpose. These issues can be confusing and you may wish to seek legal advice in order to make sure you understand how you can give your property away.
Passing on debt
The second issue to consider when making specific gifts is that any debt on property passes with the property. For example, if you leave your home to your son and the home is secured by a mortgage loan, you are also making him responsible for any money still owing on the home.
Naming Your Beneficiaries – who gets what
The example below shows what the gift section might look like. There are only a few items mentioned here, so your section might be much longer. Take time to think about what property you own and who you want it to go to after you die before you start writing.
I make the following gifts of money or property:
1. I have a checking account at Credit Union 1 in Anchorage, Alaska. I give any interest I may have in this account to my son (insert name). If he fails to survive me, I give any interest I may have in this account to my daughter (insert name).
2. I own a home located at (insert address and legal description). Upon my death, this property is to be sold and the proceeds divided equally between those of my children that survive me.
3. I currently own a 2001 Chevy pickup truck. I give any interest I may have in this vehicle, or any other vehicle I may own at the time of my death, to (insert name). If she fails to survive me, I give any interest I may have in this vehicle to (insert name).
Leaving Someone Out of Your Will (disinheriting)
Your Will reflects your own wishes. It is also a private document and you are not required to tell anyone about it or show it to your family. Of course, it is usually preferable to fully discuss your estate plan with your family so that any misunderstandings can be resolved ahead of time. But there may be good reasons to keep your Will private, especially if you intend to leave someone out of your Will.
There is no law requiring you to leave your property to people in your family. When you intentionally leave someone out of your Will, you "disinherit" them. You can disinherit any member of your family except your spouse. Your spouse will have the right to choose what is called an “elective share”, plus a homestead allowance, an exempt personal property allowance, and a family allowance. This is addressed in another section of this classroom “Special Protections for Family Members.”
You should mention every member of your immediate family in your Will, whether or not you wish to leave them anything. If you fail to mention a family member, a court may decide that you left them out by mistake.
"I give my love and affection to my son, John but it is my specific intention to leave him nothing pursuant to this Will."
On a related note, people sometime leave a family member a minimal amount, such as $1, or include a clause stating that if anyone contests the Will, they will receive nothing. A “penalty clause” is not likely to be enforced by the Alaska courts if there was probable cause for someone to file the contest.
The Residue Clause
Every Will should have a residue clause. It guarantees that all of your property is effectively disposed of by your Will. Your residuary estate (residue) consists of all property subject to your Will that is not left by specific gifts. It includes any property you may have overlooked when making your Will, as well as property that you acquire after making your Will. For instance, you might make a few specific gifts of personal items and choose to leave the rest of your property equally to your children. The residue clause is how you accomplish this.
I give the residue of my estate equally to my children.