One of the risks inherent in opting for a do-it-yourself estate plan is that, without the help of an experienced attorney, you can’t spot any missing pieces of the puzzle. Such is the case with the residuary clause, an essential part of any will, but one may be missing in wills not prepared by attorneys.
A residuary clause is a provision in a will that gives instructions as to what should happen to property that is not specifically disposed of in other parts of the will. For instance, if your will states that your home, furniture and cars will go to your spouse, and that your jewelry will go to your daughter, but there is no specific mention as to who will get your boat and your artwork, then your residuary clause will control what happens to that property.
In addition to controlling the disposition of property that is not the subject of a specific bequest in your Will, the residuary clause also controls what happens to property left to a beneficiary who predeceases you. For instance, if you left your gun collection to your favorite nephew, but he passed away before you, then your residuary clause would control who would ultimately inherit the property.
What happens without a residuary clause? Any property not left to a specific person would be divided among your heirs at law in the manner provided by state law. There are a number of drawbacks to this, among them the time and expense added to the probate process, and the fact that you and the state of Texas might not have the same ideas about who should ultimately receive your property.
Working with an experienced estate planning attorney can help ensure that your property makes its way into the hands of its intended recipients.
Stephen A. Mendel, Estate Planning Attorney
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