The first part, or Article I, of your will identifies you and your heirs. This part is referred to as the declaration section. An heir is any person who would receive your property if you died without a will. If you think about a ladder, it will help you understand the heirs you should list in this first part. If you have living heirs at the first step of the ladder, you don't need to go to the second step. If you have no heirs at the first or second step, you need to list your heirs at the third step.

The Ladder of Heirs

The first step, or level, of heirs is your spouse and your children. If you have no spouse, the only heirs at this first step are your children. If one or more of your children have died and are survived by one or more of their own children, the children of the child who is gone are included as heirs on the first step of the ladder. If any of these persons are living, you can stop here. Most people identify or declare the names of their spouse and children.

If there is no one living at the first step, you must go to the second step, which includes your mother and father. If your mother is gone, your father is your only heir, and vice versa. If your mother and/or father are living, you can stop. If your mother and father are gone, go to the next step.

The third step is your siblings or their children. If one of your siblings is gone, the child or children of the deceased sibling will become heirs and should be listed. If you have no spouse, children, grandchildren, parents, brothers, sisters, or children of siblings, you need help from a lawyer to define your heirs. It may seem silly to spend so much time teaching you about your heirs, but the probate court judge wants to be sure that you knew who your heirs were. Then, if you decide not to leave any property to an heir, later in your will you can explain why you have excluded that heir.

Also, if you die without a will, the court will distribute your property in accordance with your state's intestacy laws, which usually follow this same order in the ladder of heirs.

Defining Children

The next part of the declaration section of your will defines the words child, children, and descendants. The most important thing for you to understand is that the word child (or children) will not include stepchildren or foster children. If you want to make a distribution to a stepchild or a foster child, you can do so in Articles III or IV, but you will need to be very specific. As you read on about how to distribute your property, you will learn about the significance of the word descendant.