Residuary Clauses: Make Sure You Don’t Leave Property Out of Your Will

Residuary Clauses: Make Sure You Don't Leave Property Out of Your Will

In the intricate process of estate planning, ensuring every asset is accounted for can be daunting. Often, individuals focus on the major components of their estate, such as real property, significant financial accounts, and personal valuables, overlooking smaller yet equally important assets. This oversight can lead to complications and disputes among beneficiaries, highlighting the importance of a comprehensive will. A critical yet frequently underestimated tool in estate planning that can safeguard against the omission of property is the residuary clause.

Understanding the Residuary Clause

A residuary clause in a will is a provision that specifies how the remainder of the estate should be distributed after all specific bequests, debts, taxes, and administration expenses have been paid. It’s essentially a catch-all clause that covers any property or assets not explicitly mentioned elsewhere in the will. This includes items acquired after the will was written or assets that were inadvertently left out of the specific bequests. 

By including these clauses, the testators (the people making the will) ensures that all of their assets are distributed according to their wishes, preventing any part of the assets from passing through probate under the default intestacy laws of the state, which kick in when no will provisions apply to a particular asset. The clause plays a crucial role in comprehensive estate planning by safeguarding against oversights and ensuring that all assets, including forgotten or unexpected ones, are accounted for and distributed to the chosen beneficiaries.

The Significance of Including a Residuary Clause

The primary purpose of a residuary clause is to cover any assets left out of a will, either by oversight or because they were acquired after the will was drafted. These assets are known as the “residue” of the estate. Without this clause, any property not explicitly mentioned in the will would be distributed according to the state’s intestacy laws, which might not align with the deceased’s wishes. This clause is particularly important for digital assets, such as social media accounts or cryptocurrency, which individuals might forget to include in their plans.

Forgotten property and assets can range from small bank accounts and personal effects to valuable digital assets and royalties from intellectual property. The clause ensures these assets are included in the estate distribution according to the wishes outlined in the will. This clause is especially useful for items of sentimental value that may not have significant financial worth but are of great importance to family members or friends.

Implementation and Considerations

Implementing a residuary clause in an estate plan is a straightforward process that can significantly impact how your assets are distributed upon your death. Here are steps and considerations to effectively incorporate one of these clauses into your estate plan:

  • Consult with an Estate Planning Attorney: An experienced estate planning attorney can provide valuable advice on the nuances of inheritance law in your jurisdiction and how a residuary clause can best be structured to meet your objectives. They can help tailor the clause to your specific situation, ensuring that it complements the rest of your estate plan seamlessly.
  • Review Your Assets: Make a comprehensive list of your current assets, including real property, financial accounts, personal property, and digital assets. This will help you understand what might be left out unintentionally. Consider how you want future acquisitions to be handled, which the clause can address.
  • Decide on Your Beneficiaries: Determine who you want to inherit the bulk of your assets, including any property not specifically mentioned elsewhere in your will. Select alternate beneficiaries in case your primary beneficiary is unable to inherit.
  • Draft the Document: The clause should be written in clear, unequivocal language to avoid any potential disputes or confusion about your intentions. If you’re dividing the residue among multiple beneficiaries, specify the proportions or mechanisms for division.
  • Coordinate with Specific Bequests: Ensure that specific bequests and related clauses do not inadvertently conflict, potentially leaving insufficient assets to fulfill all bequests. Sometimes, particular bequests are made with the understanding that the residuary assets will cover debts and taxes; ensure this is planned accordingly.
  • Regular Review and Update: Update your will in response to significant life events, such as marriages, divorces, births, deaths, or substantial changes in assets. Periodically review your plan with your attorney to account for changes in law that may affect your plans.
  • Execution and Witnesses: Follow your jurisdiction’s legal requirements for signing and witnessing the will to ensure it’s valid and enforceable.
  • Communicate with Your Beneficiaries: Consider discussing your plan with your beneficiaries to manage expectations and reduce the likelihood of disputes.

By thoughtfully implementing a residuary clause, you can ensure a comprehensive approach to estate planning, safeguarding against the accidental omission of assets and ensuring your wishes are respected. Always remember that estate planning is a dynamic process, and regular updates are essential to reflect your current wishes and circumstances.

Professional Legal Guidance for Residuary Clauses and Estate Plans

A well-crafted residuary clause is a testament to thorough estate planning. It ensures that no property is left unaccounted for, safeguarding against the inadvertent exclusion of assets from the will. By incorporating this clause, individuals can provide clear directions for the distribution of their entire estate, thereby minimizing potential disputes among heirs and ensuring that their final wishes are fully realized. Estate planning, with its complexities, requires attention to detail and foresight. The inclusion of a residuary clause is a critical step in ensuring that no asset, no matter how small or overlooked, is left behind, underscoring the adage that in estate planning, nothing should be left to chance. At Rodriguez Lagorio LLP, we can help you ensure your estate plan leaves nothing out. Get started today by scheduling your consultation with our Bay Area and Fremont attorneys.