The following sample will law school or last will and testament is used as a teaching device for a law school class in Trusts and Estates at the University of Iowa College of Law. It is not intended to be used by others and there is no warranty with respect to any of the last will and testament language included in this document.
I, Testator, a resident of and domiciled in [Insert state and city] do hereby make, publish and declare this as and for my Sample Will, hereby revoking all wills and codicils previously made by me.
ONE: A. Disposition of Tangible Property: I give all of my jewelry, wearing apparel and personal effects, furniture, furnishings, books, pictures and other objects of art, silver, china, glassware, linens and other household effects, automobiles and other vehicles, and all other similar tangible personal property, of whatsoever description and wheresoever situate, and all insurance policies relating thereto, to my spouse, SPOUSE, or if my spouse shall not survive me, such property shall be distributed by my Personal Representative among such persons as I shall specify in a written memorandum signed and dated by me, as the same may be in existence at the time of my death, or if there shall be no such memorandum, such property shall be distributed in equal shares to such of my children who shall survive me, to be divided among them as they shall agree, or if only one of them shall survive me, all thereof to such survivor.
B. Bequest of Real Property: I give all of the real property that I may own at the time of my death, including all improvements, fixtures, and appurtenants thereon, and all insurance policies relating thereto, to my spouse, SPOUSE, if she shall survive me.
C. Intent Not to Exercise Power of Appointment: I do not intend to exercise and I hereby expressly refrain from exercising any powers of appointment that I may have at the time of my death.
TWO: Residuary Clause: All the rest, residue and remainder of my estate, real, personal, and mixed, of whatsoever description and wheresoever situate, of which I shall die seized or possessed or to which I shall be in anywise entitled at the time of my death, including any legacies that may lapse or be invalid or for any other reason shall fail to take effect, after the payment of all debts, expenses, charges and taxes on my estate, (hereinafter referred to as my "residuary estate"), shall be disposed of as follows:
A. Gift To Spouse: I give my entire residuary estate to my spouse, SPOUSE, if she shall survive me.
B. Gift to Issue: If my spouse, SPOUSE, shall not survive me, I give my entire residuary estate in equal shares per stirpes to such of my issue who shall survive me, provided, however, that if any of my issue who shall survive me shall be a child of mine and at the time of my death such child shall not then have attained the age of thirty (30), such child's share of my residuary estate shall not be distributed outright to such child but instead shall be held by my Trustee, hereinafter named, (hereinafter sometimes called "Fiduciary") in a separate trust for the benefit of such child (each of whom, if more than one, is hereinafter referred to as "Beneficiary") and the income and principal thereof shall be disposed of in the following manner:
1. Payout of Income or Principal for Support, etc: So much or all of the income and principal of the trust as is necessary for the support, education, health and maintenance of the Beneficiary shall be paid to, or applied towards the benefit of, the Beneficiary, by the Fiduciary so long as the Beneficiary shall live, or until the trust shall sooner terminate as hereinafter provided. Any amounts of income or principal paid to, or applied towards the benefit of, the Beneficiary shall be paid or applied annually or more often in the Fiduciary's discretion.
Any amounts of income not paid to, or applied towards the benefit of, the Beneficiary during any calendar year of the trust shall be accumulated and added to principal, and all such capitalized income shall thereafter be disposed of as part of the principal of the trust.
2. Distribution at Age 23: When the Beneficiary shall attain the age of twenty-three (23) years, one half () of the trust principal in existence at that time, together with all accrued and undistributed income, shall be distributed to the Beneficiary discharged of any trust.
3. Distribution at Age 30: When the Beneficiary shall attain the age of thirty (30) years, the balance of the trust principal in existence at that time, together with all accrued and undistributed income, shall be distributed to the Beneficiary discharged of any trust.
4. Termination due to Size of Trust: If the market value of the trust principal is Twenty thousand Dollars ($20,000) or less on January 1 of any calendar year beginning immediately after the Beneficiary attains the age of eighteen (18) and in any calendar year thereafter but prior to the time the Beneficiary attains the age of twenty-three (23), the Fiduciary shall terminate this trust and distribute the trust principal then remaining to the Beneficiary discharged of any trust.
If the market value of the trust principal of the trust principal is Fifty thousand Dollars ($50,000) or less on January 1 of any calendar year in the first calendar year beginning immediately after the Beneficiary attains the age of twenty-three (23) and in any calendar year thereafter and prior to the time the Beneficiary attains the age of thirty (30), the Fiduciary shall terminate this trust and distribute the trust principal then remaining to the Beneficiary discharged of any trust.
5. Testamentary Special Power of Appointment in Beneficiary: If the Beneficiary shall die prior to attaining the age of thirty (30) years, the principal of the trust, at that remaining, shall be distributed to such one or more of the Beneficiary's issue, my issue, and spouses of such issue, outright or in further trust and in such proportions and subject to such terms and conditions as the Beneficiary shall appoint by the Beneficiary's last will admitted to probate. This testamentary special power of appointment shall be exercisable only by a specific reference thereto in the will of the Beneficiary and shall not be deemed to have been exercised by any general residuary article contained therein.
6. Takers if Beneficiary Fails to Exercise Special Power: If the Beneficiary shall die prior to attaining the age of thirty (30) years and shall fail to have effectively exercised the foregoing special power of appointment, the principal of the trust, at that time remaining, together with all accrued and undistributed income, shall be distributed in equal shares per stirpes to such of the Beneficiary's issue as shall survive the Beneficiary, or if there shall be no such issue, in equal shares per stirpes to such of my issue as shall survive the Beneficiary, provided, however, that if any share of such principal would then become distributable to any child of mine for whom a separate trust is then being held in trust hereunder, such share shall not be distributed outright to such child but instead shall be added to the principal of such trust and disposed of as a part thereof, or if there shall be no such issue, such principal shall be distributed in the same manner and upon the same terms and conditions as my residuary estate would have been disposed of under Paragraph 2 of Subdivision C of this Article TWO if I had survived the Beneficiary and then died immediately after the Beneficiary being the absolute owner of such principal and on the further assumption that no persons were then employed by the Police Law Institute.
C. Gift to Others: If neither my spouse nor any of my issue shall survive me, I give my residuary estate [insert dispositive provisions].
D. Effect of Disclaimers: Notwithstanding the foregoing:
1. Disclaimer by Spouse: If my spouse, SPOUSE, shall survive me but shall disclaim any of the property bequeathed to her under the foregoing provisions of either Article ONE or Article TWO of this Will, such disclaimed property shall not be disposed of as if my spouse had predeceased me but instead shall be distributed to the Trustees of the Disclaimer Trust created under Article TWO-A of this Will.
2. Disclaimer by Someone Other than Spouse: If any beneficiary, other than my spouse, SPOUSE, shall disclaim all or any portion of the property passing to such beneficiary under the provisions of this Will, then such beneficiary shall be deemed to have predeceased me for the purpose of disposing of any disclaimed property interest.
TWO-A: Disclaimer Trust: Pursuant to the provisions of Article TWO of this Will, if my spouse, SPOUSE, shall disclaim any or all of the property bequeathed to her under Article ONE or Article TWO of this Will, such property is directed to be distributed to the Trustees named in Article THREE. Any property passing to the Trustees of this Disclaimer Trust shall be held by such Trustees (hereinafter sometimes called "Fiduciary") in trust and the income and principal thereof shall be disposed of in the following manner:
A. Distribution of Income and Principal: During my spouse's lifetime, so much or all of the net income and principal of the trust as is necessary to provide for the support, education, health and maintenance of my spouse shall be paid to, or applied towards the benefit of, my spouse, SPOUSE. Any amounts of income paid to, or applied towards the benefit of, my spouse, shall be paid or applied annually or more often in the Fiduciary's discretion. Any net income not so paid shall be accumulated and added to principal, and all such capitalized income shall thereafter be disposed of as part of the principal of the trust.
B. Lifetime Special Power of Appointment in Spouse: During my spouse's lifetime, the Fiduciary shall distribute so much or all of the principal of the trust to any one or more or all of my issue, the issue of my spouse's parents, and the spouses of such issue, outright or in further trust and in such proportions and subject to such terms and conditions as my spouse shall appoint by an instrument in writing, signed and acknowledged and delivered to the Fiduciary, it being my intention to grant to my spouse a lifetime special power of appointment.
C. Special Testamentary Power of Appointment in Spouse: Upon my spouse's death, the principal of the trust, at that remaining, shall be distributed to such one or more of my issue, the issue of my spouse's parents, and the spouses of such issue, outright or in further trust and in such proportions and subject to such terms and conditions as my spouse shall appoint by her last will admitted to probate. This testamentary special power of appointment shall be exercisable only by a specific reference thereto in my spouse's will and shall not be deemed to have been exercised by any general residuary article contained therein.
D. Persons to Take if Power Not Exercised: To the extent that my spouse shall fail effectively to exercise the foregoing special powers of appointment, the principal of the trust remaining at her death, shall be distributed in the same manner and upon the same terms and conditions as my residuary estate would have been disposed of under Paragraph 2 of Subdivision C of Article TWO of this Will if I had survived my spouse and then died immediately after her being the absolute owner of such principal and on the further assumption that no persons were then employed by the Police Law Institute.
THREE: A. Appointment of Personal Representative: I nominate and appoint my spouse, SPOUSE, as the Personal Representative hereunder. If my spouse shall not survive me, or if for any other reason she shall fail to qualify as Personal Representative hereunder, or, having qualified as such, if my spouse shall cease for any reason to act as Personal Representative, I nominate and appoint Bank, as Personal Representative in her place and stead.
B. Appointment of Trustees of Disclaimer Trust: I nominate my spouse, SPOUSE, and BANK as Trustees of any Disclaimer Trust held under Article TWO-A of this Will.
C. Right to Appoint Other Fiduciaries: The individual Fiduciary of my estate or of any trust created hereunder, at any time in office, is authorized, in the Fiduciary's absolute discretion, at any time and from time to time, by an instrument in writing, signed and acknowledged, to appoint additional or successor Fiduciaries of my estate or trust, as the case may be, either individual or corporate, to act in addition or in succession to the Fiduciary designated herein or pursuant to the power herein granted, provided, however, that in no event shall there be more than two Fiduciaries, including one corporate Fiduciary, of my estate or trust, as the case may be, in office at the same time.
D. Formalities of Appointment: Any instrument appointing additional or successor Fiduciaries shall be revocable by the individual Fiduciary at the time being in office, whether or not such Fiduciary shall be the Fiduciary signing such instrument, at any time prior to the assumption of duties of Fiduciary by the appointee. In the event the Fiduciary shall have executed more than one instrument appointing additional or successor Fiduciaries, the instrument that shall bear the most recent date and shall be unrevoked shall govern.
E. Power to Delegate: I authorize any individual Fiduciary of my estate or of any trust created hereunder to delegate any right, power, duty, authority or discretion such Fiduciary may have to any other Fiduciary of my estate or the trust, as the case may be, by an instrument in writing, signed and acknowledged and delivered to such other Fiduciary and for such period or periods of time as such Fiduciary may designate in such written instrument. Any such delegation shall be revocable at any time by the Fiduciary signing such instrument of delegation. Notwithstanding the foregoing, no Fiduciary shall delegate to any other Fiduciary hereunder any right, power, duty, authority, or discretion which such other Fiduciary can not exercise hereunder.
F. Right to Resign: Any individual Fiduciary of my estate or of any trust created hereunder may at any time resign by an instrument in writing, signed and acknowledged and delivered to the remaining co-Fiduciary of the estate or trust, as the case may be, or, if none, to the next successor Fiduciary.
G. Appointment of Guardians and Conservators: I nominate and appoint my spouse, SPOUSE, as Guardian of the person of, and the Conservator of the property belonging to, such of our children as shall be minors at the time of my death. If my spouse shall not survive me, or shall fail for any other reason to qualify as Guardian or Conservator, or, having qualified, shall cease for any reason to act as a Guardian or Conservator, I nominate and appoint RELATIVE as such Guardian or Conservator.
H. Powers of Guardians and Conservators: I authorize any Guardian or Conservator from time to time acting to exercise with respect to the property held by such Guardian or Conservator all of the powers and authority conferred upon my Fiduciary by the provisions of Article FIVE of this Will.
I. No Bond Required: No bond or other security shall be required of any Fiduciary, Guardian or Conservator designated herein or pursuant to the power herein granted for the faithful performance of his, her or its duties. No person shall qualify as a Guardian or Conservator unless he or she shall agree to serve without a fee.
J. Meaning of Personal Representative, Trustee, Fiduciary, Guardian and Conservator: The terms "Personal Representative" or "Personal Representatives" wherever used in this Will shall be taken to mean the personal representative or executor of my estate for the time being in office, the terms "Trustee" or "Trustees" shall be taken to mean the trustee or trustees for the time being in office of any trust with respect to which they have been designated to act as a trustee, the term "Fiduciary" or Fiduciaries" shall be taken to mean the person or persons serving as either Personal Representative or Personal Representatives of my estate, or as the Trustee or Trustees of any trust created hereunder, as contextually appropriate, the term "Guardian" wherever used in this Will shall be taken to mean any guardian for the time being in office, and the term "Conservator" wherever used in this Will shall be taken to mean any conservator for the time being in office, and each such Personal Representative, Trustee, Fiduciary, Guardian, and Conservator shall have the same rights, powers, duties, authority, and privileges, whether or not discretionary, as if originally appointed hereunder, except as may otherwise be expressly provided herein to the contrary. When any such term is preceded by the word "individual," then such word shall be deemed to refer to a Personal Representative, Trustee or Fiduciary who is not a bank or trust company.
If a beneficiary of my estate or of any trust created hereunder shall be acting as a Fiduciary hereunder, such beneficiary shall not exercise, or participate in the exercise, of any discretionary power granted to my Fiduciaries to distribute the income or principal of my estate or of such trust, as the case may be, to such beneficiary, directly or indirectly, unless otherwise expressly provided to the contrary herein.
FOUR: A. Spendthrift Clause: No disposition, charge, or encumbrance on the income or principal of any trust or any part thereof by any beneficiary under this Will by way of anticipation shall be valid or in any way binding upon the Fiduciary, and no beneficiary shall have the right to assign, transfer, encumber, or otherwise dispose of such income or principal or any part thereof until the same shall be paid to such beneficiary by the Fiduciary, and no income or principal or any part thereof shall in anywise be liable to any claim of any creditor of any such beneficiary.
B. Right to Net Amounts Only: The right of any beneficiary to any payment of income or principal shall in every case be subject to any charge or deduction that my Fiduciary may make against the same under the authority granted to my Fiduciary by law or by any provision of this Will.
C. Meaning of Child, Children and Issue: The words "child", "children", and "issue" wherever used in this Will shall include not only the child, children, and issue of the blood of the person or persons designated, but also the legally adopted child and children of such designated person or persons and also the legally adopted children and issue of any such legally adopted children, provided, however, that any such legally adopted child shall be a minor at the time of his or her adoption. A person shall be regarded as adopted only if the adoption is by a court proceeding, the finality of which is not being contested by the adopting person. A child en ventra sa mere shall also be regarded as though such child were living provided such child is born alive.
A child shall be regarded as being of the blood of the person or persons designated even if such child is born as the result of the use of any form of assisted reproductive technology if such designated person consented to the use of the reproductive technology, and such child was born (I) in the lifetime of such designated person or within nine months of such designated person's death and (II) to either such designated person or another person to whom such designated person was married, or (III) to any other person if such designated person either acknowledged the child born to such other person to be his or her child or such designated person adopted such child.
D. Meaning of Minor: The word "minor" wherever used in this Will shall be taken to mean any person who has not reached his or her eighteenth birthday.
E. Plural and Gender Terms: Unless the context otherwise requires, words in the singular number include the plural, words in the plural number include the singular, words of the masculine gender include the feminine, and words of the feminine gender include the masculine.
F. Survivorship Requirement: Whenever under the provisions of this Will any beneficiary's interest shall be conditioned upon such beneficiary surviving myself, my spouse, or being alive upon the happening of any other event, such beneficiary shall be deemed to have satisfied such survivorship contingency only if such beneficiary shall survive me, my spouse or such other event by 120 hours, as the case may be.
G. Distribution Among Issue: When under any provision of this Sample Will my residuary estate or the principal of any trust created hereunder becomes distributable "in equal shares per stirpes," to my issue or the issue of any other designated person or persons, my residuary estate or the principal of such trust, as the case may be, shall be distributed to such issue as follows: My residuary estate or such principal shall be divided at the nearest generation of issue of mine or such other persons, as the case may be, that contains at least one member who shall be living at the time of my death or the termination of the trust, as the case may be, with an allocation of one equal share to each surviving member of that generation, if any, and to each of the members of that generation, if any, who shall not then be living but who shall have died leaving issue of a more remote generation then living. The shares of members of that initial division generation who shall not then be living but shall have died leaving issue then living shall be further divided among such issue as if each succeeding remote generation was the initial division generation.
FIVE: Power in Trust: I authorize any Fiduciary acting hereunder in the Fiduciary's absolute discretion and notwithstanding the foregoing provisions of this Will and in addition to any other powers my Fiduciary may otherwise possess by law:
(1) In any case in which the Fiduciary is authorized or directed by any provisions of this Will to distribute income or principal to any beneficiary:
(a) to apply the whole or any part of such income, and, in case such beneficiary shall be a minor or incompetent or otherwise be under a legal disability or mental incapacity making the beneficiary incapable of handling and disposing of his property, as determined by my Fiduciary (other than such beneficiary), to apply in the Fiduciary's absolute discretion, the whole or any part of such principal, directly to the care, comfort, maintenance, support, education, or use of such beneficiary instead of paying or distributing the same to such beneficiary, or
(b) to pay or distribute the whole or any part of such income or principal payable or distributable to any such beneficiary to:
(i) the parent of such beneficiary,
(ii) the guardian, committee, conservator, or other legal representative, wherever appointed, of such beneficiary,
(iii) a custodian for such beneficiary, if the beneficiary is a minor, acting under the gifts or transfers to minors act of any state;
(iv) the person with whom such beneficiary shall reside,
(v) any other person having the care and control of such beneficiary, or
(vi) such beneficiary personally,
and the receipt of the person to whom any such payment or distribution is made shall be a sufficient discharge therefor, even though my Fiduciary or any of them, if more than one, may be such person;
(2) To defer, in whole or in part, payment or distribution of any property to which a minor may be entitled until such minor shall have attained the age of eighteen years, or to make such payment or distribution at any time or from time to time during the minority of such minor, holding the whole or the undistributed portion thereof as a separate and distinct share for such minor absolutely with all of the powers and authority set forth in Article SIX of this Will:
(3) To accumulate and invest the whole or any part of any income to which a minor may be entitled for the benefit of such minor; to pay, distribute, or apply any such accumulated income to or for the benefit of such minor as provided in Paragraph (1) of this Article FIVE at any time during minority; and to pay or distribute any balance thereof to such minor when such minor shall have attained the age of eighteen years, or, in case of such minor shall die before attaining such age, to the executor, administrator, trustee, fiduciary, or other legal representative of the estate of such minor, or, if there shall be no such legal representative, to such persons as would have inherited the same, and in the same proportions as they would have taken, if such minor had died intestate the absolute owner thereof and a resident of the state in which such minor was domiciled at the time of his or her death.
Any Fiduciary holding property for a minor under the provisions of this Article FIVE shall be entitled to receive the compensation prescribed by law for testamentary trustees with respect to any property held for a minor pursuant to this Article FIVE.
SIX: Fiduciary Powers: I authorize the Fiduciary in the Fiduciary's absolute discretion, with respect to any property, real or personal, left by me or at any time held or acquired by the Fiduciary (including accumulated income), without authorization by any court and in addition to any other powers the Fiduciary may otherwise possess by law:
(1) Power to Retain: To retain the same for such periods of time as the Fiduciary shall deem advisable without any liability therefor;
(2) Power to Dispose of Assets: To sell, exchange, or otherwise dispose of the same at such times, in such manner, for cash or on credit, and upon such terms and conditions, as the Fiduciary shall deem advisable;
(3) Power to Hold Assets Uninvested: To hold all or any part invested for such periods of time as the Fiduciary shall deem advisable;
(4) Prudent Investor Rule: To invest in any real or personal property, and manage estate or trust assets, as a prudent investor would, by considering the purposes, terms, distribution requirements and circumstances of my estate and of the trust, as the case may be, and by exercising reasonable care, skill and caution. Any decision of the Fiduciary regarding the investment or management of individual estate or trust assets, as the case may be, shall be evaluated not in isolation but in the context of the estate or trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to my estate or to the trust.
In making investment and management decisions regarding estate or trust assets the Fiduciary may take into account any one or more of the following as the Fiduciary determines to be relevant to either my estate, the trust or the beneficiaries:
(a) General economic conditions;
(b) The possible effect of inflation or deflation;
(c) The expected tax consequences of investment decisions or strategies;
(d) The role each investment or course of action plays within the overall estate or trust portfolio which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
(e) The expected total return from income and appreciation of capital;
(f) Other resources of the beneficiaries, except that a beneficiary's other resources need not be taken into account for purposes of determining whether distributions of either principal or income of the estate or trust may be made to a beneficiary unless expressly provided herein to the contrary;
(g) The needs for liquidity, regularity of income and preservation or appreciation of capital; and
(h) An asset's special relationship or special value, if any, to the purposes of the estate, the trust or to one or more of the beneficiaries thereof.
This power is subject to the Fiduciary's obligation to diversify investments unless the Fiduciary reasonably determines that, because of special circumstances, the purposes of the estate or trust are better served without diversifying;
(5) Power to Improve and Lease: To manage, maintain, improve, lease (for any term whether or not extending beyond the term of any trust created by this Will or the term fixed by any law), mortgage, partition, or otherwise dispose of any real or personal property or any interest therein; to make repairs and alterations in any buildings now or hereafter located on any such property or to demolish the same and to construct new buildings, all in such manner and upon such terms and conditions as the Fiduciary shall deem advisable;
(6) Power to Deal with Debt: To foreclose mortgages and bid on property under foreclosure or to take title to property by conveyance in lieu of foreclosure, either with or without payment of consideration; and to continue mortgage investments after maturity, either with or without renewal or extension, upon such terms and conditions as the Fiduciary shall deem advisable; to consent to the modification, renewal, or extension of any note, whether or not secured, or of any bond or mortgage, or of any term or provisions thereof, or of any guarantee thereof, or to the release of such guarantee; to release obligors of bonds secured by mortgages or to refrain from instituting suits or actions against such obligors for deficiencies; to use such part of the property held under this will or any trust created hereunder as the Fiduciary shall deem advisable for the protection of any investment in real property or in any mortgage on real property;
(7) Power to Abandon: To abandon any property, real or personal, that the Fiduciary shall deem to be worthless or not of sufficient value to warrant keeping or protecting; to abstain from the payments of taxes, water rents, assessments, repairs, maintenance, and upkeep of any such property; to permit any such property to be lost by tax sale or other proceedings; or to convey any such property for a nominal consideration or without consideration;
(8) Powers with Respect to Options, etc.: To exercise or dispose of any or all options, privileges, or rights, whether to vote, by discretionary proxy or otherwise, or to assent, subscribe, or convert, or of any other nature; or to become a party to, or deposit securities or other property under, or accept securities issued under, any voting trust agreement;
(9) Powers to Assent or Participate: To assent to or participate in any reorganization, readjustment, recapitalization, consolidation, merger, dissolution, sale, or purchase of assets, lease, mortgage, contract, or other action or proceeding by any corporation; to deposit securities or other property under, or become a party to, any agreement or plan for any such action or proceeding or for the protection of holders of securities; to subscribe to new securities issued pursuant to any such action or proceeding; to delegate discretionary powers to any reorganization, protective, or similar committee; to exchange any property for any other property in connection with any of the foregoing; and to pay any assessments or other expenses in connection with any of the foregoing;
(10) Powers to Carry on a Business: To carry on any business owned by me or in which I may have an interest for such period of time as the Fiduciary shall deem advisable, or to sell or liquidate the same;
(11) Power to Settle Disputes: To adjust, compromise, and settle or to refer to arbitration any claim in favor of or against my estate or any trust created by this Will, and to institute, prosecute, or defend such legal proceedings as the Fiduciary shall deem advisable;
(12) Power to Borrow: To borrow money from himself or herself or from any other party, whether for the purpose of raising funds to pay taxes or otherwise, and to give or not to give security therefor, all upon such terms and for such periods as the Fiduciary shall deem advisable;
(13) Power to Make Loans: To make any loans, either secured or unsecured, in such amounts, with or without interest and upon such other terms and conditions and to such persons (including any beneficiary of any trust created herein), firms, or corporations as the Fiduciary may determine, provided, however, that any loans made to a person who shall be acting as a fiduciary hereunder shall be made only for adequate interest and security;
(14) Power to Employ Agents: To employ and to pay the compensation of such agents, accountants, custodians, experts, and counsel, legal or investment, as the Fiduciary shall deem advisable, and to delegate discretionary powers to, and rely upon information or advice furnished by, such agents, accountants, custodians, experts, or counsel, provided, however, that if a bank or trust company shall be acting as a fiduciary hereunder, no payments shall be made for custodial or investment advisory services rendered by or to such bank or trust company;
(15) Power to Pay Expenses: To pay any and all expenses, costs, fees, taxes, penalties, or other charges (including the fees of the Fiduciary, and if the Fiduciary shall be a corporate Fiduciary, then such fees shall be calculated in accordance with the Fiduciary's regularly published fee schedule, if any, but only in the absence of any express agreement to the contrary) and to charge the same against principal or income or partly against the principal and partly against the income of the whole or any part of my estate or of any trust created hereunder, or any parts, funds, or shares created by this Will, except as otherwise expressly provided herein;
(16) Power to Maintain Reserves: To set up reserves for taxes, assessments, insurance, repairs, depreciation, obsolescence, and general maintenance on any buildings or other property held by the Fiduciary out of rents, profits, or other income received on such buildings or other property;
(17) Nominee Registration: To hold property in the name of any Fiduciary, as Fiduciary, or, to the extent permitted by law, in the name of any Fiduciary without designation of any fiduciary capacity or in the name of a nominee or unregistered or in such other form as will pass by delivery;
(18) Power to Form Corporations: To form such corporations or partnerships as the Fiduciary shall deem advisable in connection with the administration or distribution of my estate or any trust, part, fund, or share thereof, and to transfer to any such corporation or partnership such property as the Fiduciary shall deem advisable;
(19) Power to Distribute Property: To pay any legacy or make any division, distribution, or partition of property in kind or otherwise and to allot any property, including an undivided interest therein, to any trust created hereunder, or any part, fund, or share, whether or not the same kind of property is allotted to other trusts, parts, funds, or shares, and in any case in which the Fiduciary is required or permitted to divide my estate or any part thereof into trusts, parts, funds, or shares, the Fiduciary shall not be required physically to divide any of the investments or other property held hereunder, but may assign undivided interests therein to the various trusts, parts, funds, or shares.;
(20) Power to File Income Tax Returns With Spouse: To join with my spouse in the filing of any income tax returns or amended returns for any year and to pay my ratable share of any taxes due thereon and also to consent to any gifts made by my spouse as being made one half by me for the purposes of the federal gift tax law,
(21) Power to Deal with Mineral Interests: To drill, test, explore, mine, develop, and otherwise exploit any oil, gas, mineral, or other interests of any kind in natural resources (including interests commonly known as working interests in oil, gas, or any other mineral), and to enter into any pooling, unitization, repressurization, or other type of agreement relating to the development, operation and conservation of mineral properties, which, in the discretion of the Fiduciary, is for the best interests of my estate or of any trust created hereunder;
(22) Power to Make Contracts: To enter into contracts or grant options at such times, in such a manner and upon such terms and conditions as the Fiduciary shall deem advisable and, without any personal liability thereon, in connection with the exercise of any of the rights, powers, duties, authority, and privileges given to the Fiduciary by this Will or by law;
(23) Power to Allocate Receipts Between Income and Principal: To determine the character as either income or principal of all receipts and disbursements, and to allocate receipts and disbursements between income and principal in such shares, manner and proportions and as the Fiduciary deems advisable in his or her absolute discretion;
(24) Release of Powers: To release, renounce or disclaim any discretionary power granted to the Fiduciary by an instrument in writing delivered to a co-Fiduciary, if any, or to the person or persons then entitled to my residuary estate or to the income of any trust created hereunder, provided, however, that any power released, renounced, or disclaimed by a Fiduciary shall never again be exercisable by that Fiduciary but shall only be exercisable by those Fiduciaries, if any, who have not released, renounced or disclaimed such power;
(25) Residual Powers: Generally, to exercise all such rights and powers, to do all such acts, and to enter into all such agreements as persons owning similar property in their own right might lawfully exercise, do, or enter into.
Exoneration of Others: No person dealing with the Fiduciary shall be bound to see to the application or disposition of cash or other property transferred to the Fiduciary, or to inquire into the authority for or propriety of any action by the Fiduciary.
No Periodic Accountings by Trustee: My Trustees shall not be required to file any annual or interlocutory accounting that may otherwise be required by law.
Distributions by Personal Representative During Estate Administration: My Personal Representative is authorized to make partial or complete distributions to the beneficiaries of my estate or to any trust created hereunder from time to time during the administration of my estate and prior to the complete termination of the administration thereof and to make unequal partial distributions to beneficiaries from time to time during the administration of any estate, provided that appropriate distributions are made no later than the final settlement of my estate to assure that all beneficiaries ultimately receive all property bequeathed to them hereunder; and to make such other distributions during the administration of my estate as the Personal Representative may determine.
Valuation of Estate Assets and Adjustments on Account of Swing Deductions: The decision of the Personal Representative as to the date that shall be used for the valuation of my gross estate for Federal estate tax purposes and, where a choice is available, the decision of the Personal Representative as to whether certain deductions shall be taken as income tax deductions or as estate tax deductions shall be binding on all interested parties. The Personal Representative, in his or her absolute discretion, may adjust the income and principal accounts to take into account the effect of any such decision made by him or her to the extent and in the manner the Personal Representative deems appropriate, and such adjustment, or the determination not to make any adjustment, shall be binding on all interested parties. If my spouse shall be acting as one of the Personal Representatives hereunder, my spouse shall not exercise or participate in the exercise of the power granted in this provision of my will. If my spouse shall be acting as the sole Personal Representative of my estate, then my spouse shall make those elections affecting the valuation of my estate and the allowance of deductions in computing the value of my taxable estate which shall result in the lowest aggregate federal estate tax and federal income taxes on my estate, or on the incomes or estates of my successors.
Power to Merge Trust Assets: If the Fiduciary shall hold, or shall be directed to hold, assets in trust hereunder for the benefit of one or more beneficiaries for whom the Fiduciary also holds, or is directed to hold, other assets in trust under the terms of any inter vivos instrument executed by me as Donor, or under the terms of any inter vivos instrument or will executed by my spouse, as Donor or Testator, with terms substantially similar to the terms of the trust for the benefit of such beneficiaries under the provisions of this Will, then I authorize the Fiduciary to transfer the assets of the trust held, or to be held hereunder, into the principal of such other trust and to hold all such assets in one trust for the benefit of the beneficiaries. The decision of the Fiduciary to merge such trusts, or the Fiduciary's decision not to merge them, as well as the decision of the Fiduciary regarding whether the terms of such trusts are substantially similar shall be binding and conclusive on all interested parties.
SEVEN: Payment of Taxes: I direct that all estate, transfer, succession and similar taxes or duties, including interest and penalties thereon, whether they be imposed with respect to any property or interest passing under this Will or otherwise, shall be charged against the principal of my residuary estate and treated as an expense of administering my estate.
IN WITNESS WHEREOF, I, TESTATOR have signed my initials on each of the __ preceding pages of this Sample Will and signed my name on this last page of my Sample Will, being the end of my Sample Will, this ___ day of ____, A.D., One thousand nine hundred and _______
The foregoing instrument was signed, published and declared by Testator, the above named Testator, as and for his Sample Will, in our presence, all being present at the same time, and thereupon we, at his request and in his presence and in the presence of each other, have signed our names as witnesses this _______________.
STATE OF IOWA )
COUNTY OF JOHNSON )
We, the undersigned, Testator, Witness #1 and Witness #2, the Testator and two witnesses, respectively, whose names are subscribed to the attached Last Will of Testator dated July 29, 1996, being first duly sworn, declare to the undersigned authority that said Sample Will is Testator's Sample Will and that he willingly signed and executed the same as a free and voluntary act for the purposes therein expressed; that said two witnesses and each of them, declare to the undersigned authority that said Sample Will was executed and declared by Testator as his Sample Will in their presence and that they, in Testator's presence, at Testator's request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on __________, the date of said Sample Will; and that Testator , at the time of the execution of said Last Will, was of full age and of sound mind and that the witnesses were sixteen (16) years of age or older and otherwise competent to be witnesses.
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Another common problem is being able to access the Decedent's computers and other digital accounts. Many states have now passed laws allowing the personal representative or the power of attorney to access the accounts. You may want to add empowering language into their financial power of attorney and last will and testament as follows:
My executor (power of attorney) shall have the authority to access my digital records and the content of any
electronic communications sent or received by me in accordance with the
Uniform Fiduciary Access to Digital Records Act of my state of residence.