LawDopers: Have you ever seen a will which disposed of an estate by percentages of whatever assets were on hand at the time of death, rather than by specific dollar amounts? Something like, “My estate is to be liquidated immediately after my death. Thereafter, I bequeath half of the total value of whatever I own to my husband, and then one-tenth each of the remainder to the Adams Library, the Zotti Community Foundation, Slug University, the American Red Cross and the Fund for Decrepit Dopers.”
If you haven’t seen it done like that, is it lawful? Feasible? Advisable?
IANALD. But my will is exactly like that. 1/3 of *whatever is left to be divided equally among my three siblings, and the remaining 2/3 to be divided equally among my nieces and nephews.
*Not that I plan to leave anything after my funeral expenses, but they don’t know that.
Percentages, or shares, are used most of the time when dealing with the residual that is left once the specific bequests have been made. E.g. I give this specific amount or thing to Fred. I give that specific amount or other thing to Wilma. I give whatever is left (the residual) in equal shares (i.e. 50/50) to Barney and Betty.
Since sepcific bequests can be problematic (what if the estate does not have enough to meet the specific bequests), often folks don’t make specific bequests, and simply deal with everything as residual.
Using shares can make it easier when trying to deal with contingent bequests to people who have not yet been born, for example, if you want your son’s share to be divided equally among his kids should he die before you, despite you not knowing today how many kids he might have at that future date.
My mother’s will called for a certain percentage to go to each child. On big assets, like the house, she named a child who had “first call” on it and could take it as part of their percentage. If the “first call” person didn’t want it, another child could take it as part of their percentage.
This is how my aunt’s will was drawn. She was unmarried, so didn’t have a residual legatee, and wanted to divide the estate up between various nephews and nieces. As well, she was living on her own, but of course for an elderly person there’s always the possibility that she would live to an old age and need most of her property to pay for her care, so she didn’t know when she wrote her will exactly how much would be left.
Dividing the estate by percentages seems a good way to ensure that the estate is divided up according to the testator’s wishes, without knowing in advance the exact size of the estate.
My mother’s will divided her entire estate evenly among all five of her children. My father’s will was a bit more complicated because he outlived her by twenty years and he elected to include bequests to his grandchildren as well, but the will stipulated varying percentages to everyone.
Thinking about this some more, I can see the idea of giving set amounts to individual beneficiaries, if the intention is to have the bulk of the estate go to a residual legatee, such as the surviving spouse. However, if the intention is to distribute the estate to a number of beneficiaries, without having a residual legatee, then percentages would be the way to go.
Elendil’s Heir, can you give us any more context about the inquiry?
IANAL either but this is exactly the way several wills I’ve seen (and benefitted from) were written. My mother’s will for example left some specific dollar-amount bequests, to her college etc., and then divided the remainder equally among us 4 kids.
The problem with percentages is that it may require the sale of property that the family might prefer to keep, or it can end up with ten people each owning a tenth interest in a house, which would be an administrative nightmare. In such a situation, one might be better off bequeathing one’s estate to a pour-over trust (where it can be managed more easily), in which the ten heirs are beneficiaries.