Most will and trust litigation traces to a small set of avoidable drafting errors. Precision on the following recurring issues prevents partial intestacy, unintended disinheritance, tax surprises, and fiduciary disputes.
- Ademption: a specific gift of property no longer owned at death fails — use classes, formulas, or contingent cash gifts to avoid unintended failure.
- Abatement: specify the order in which gifts are reduced when assets are insufficient, rather than leaving the statutory default to surprise beneficiaries.
- Lapse and anti-lapse: address what happens if a beneficiary predeceases; know the state's anti-lapse statute and draft survivorship and substitute-taker language deliberately.
- Missing residuary/ultimate taker: always include a residuary clause and a final 'wipeout' beneficiary to avoid partial intestacy.
- Per stirpes vs. per capita vs. by representation: state the exact distribution model; do not rely on ambiguous shorthand.
- Tax apportionment: silence or a boilerplate 'pay all taxes from the residue' clause can unintentionally shift the tax burden and distort the plan (e.g., burdening the residuary beneficiary for taxes on nonprobate transfers). Draft apportionment to match intent.
- Formula marital/credit-shelter clauses: pecuniary vs. fractional formulas allocate gain, funding flexibility, and administrative burden differently — choose deliberately, and stress-test the formula against a large exemption so it does not over- or under-fund a share.
- Beneficiary-defective and grantor-trust powers: confirm the intended income-tax status is actually achieved and not accidentally toggled.
Stale formula clauses
Old A-B formulas drafted for a small exemption can now dump the entire estate into a bypass trust (or unintentionally disinherit a spouse) under a $15M exemption. Review legacy documents against current exemption levels.
Key takeaways
- Prevent partial intestacy with a residuary clause, ultimate taker, and deliberate anti-lapse/survivorship language.
- Draft tax apportionment and marital/credit-shelter formulas to match intent — and re-test legacy formulas against the $15M exemption.
- Define family terms and fiduciary succession precisely, and keep documents, designations, and titling internally consistent.
Authorities
- Uniform Probate Code (ademption 2-606, anti-lapse 2-603, abatement 3-902, apportionment)
- Restatement (Third) of Property: Wills and Other Donative Transfers