PRELIMINARY COUNSEL NOTE (JURISDICTION REQUIRED)
This instrument is a model “pour-over” Last Will and Testament tailored to: (i) an individual holding 40% of the equity of a private company and unexercised equity options; (ii) a death-triggered transfer to a pre-existing Family Trust; and (iii) a contractual right of first refusal in favor of partners at an audited net asset value price. Because the enforceability of testamentary and corporate-transfer provisions turns on local law and the company’s governing documents, this draft must be localized by counsel in the testator’s domicile and the company’s jurisdiction. Specific citations (statutes and case law) should be inserted once jurisdiction is confirmed (e.g., Wills Act/UPC or equivalent for will formalities, Uniform Testamentary Additions to Trusts Act for pour-over, and local company law and contract law for transfer restrictions and ROFR).
LAST WILL AND TESTAMENT OF [FULL LEGAL NAME]
I, [Full Legal Name], of [City, Country], being of sound mind and disposing memory, do hereby make, publish, and declare this to be my Last Will and Testament (this Will), revoking all prior wills and codicils.
ARTICLE 1. IDENTIFICATION; FAMILY; DEFINITIONS
1.1 Identification. I am [marital status]. I have the following children: [names and birthdates]. References to “my issue” mean my lawful descendants, per stirpes, whether now living or hereafter born or adopted.
1.2 Definitions.
(a) Company means [full legal name of company], a [jurisdiction and form] with registered office at [address].
(b) Equity Interest means all equity securities of the Company legally or beneficially owned by me at my death, including my forty percent (40%) ownership interest (whether denominated as shares, units, or membership interests), together with all rights appurtenant thereto, subject to all restrictions and obligations in the Company’s charter documents, shareholders’/members’ agreements, and applicable law.
(c) Unexercised Options means all options, warrants, or other rights to acquire equity of the Company held by me at death, including any related awards or units issued under any equity incentive plan or award agreement (collectively, the Option Plan).
(d) Family Trust means the trust titled “[Name of Family Trust], dated [date],” of which [Trustee’s name(s)] is/are trustee(s), as amended from time to time, or any successor trust permitted to receive testamentary additions under applicable law.
(e) ROFR means any right of first refusal, co-sale, or buyback right in favor of the Company and/or my partners/shareholders pursuant to the Company’s constitutional documents, shareholders’ agreement, option agreements, or other binding instrument, including a pricing mechanism based on audited net asset value (Audited NAV).
(f) Audited NAV means the net asset value determined in accordance with the governing documents providing for such valuation, as certified by the Company’s independent auditor as of the applicable valuation date or other date as required by the ROFR terms.
ARTICLE 2. EXECUTOR; BOND; POWERS
2.1 Appointment. I appoint [Executor name] as Executor of this Will. If [he/she/they] does/do not qualify or ceases to act, I appoint [Alternate Executor name] as successor Executor.
2.2 Bond. No bond or surety shall be required of any fiduciary unless mandated by law or ordered by a court.
2.3 Powers. In addition to powers conferred by law, my Executor shall have full authority, without court order, to:
(a) collect, manage, vote, and dispose of the Equity Interest and any securities or rights related thereto;
(b) exercise, settle, release, or allow to lapse any Unexercised Options as economically and legally appropriate under the Option Plan, including cash or cashless exercise, net settlement, or broker-assisted transactions;
(c) comply with, perform, and enforce all provisions of the Company’s organizational documents, the shareholders’ agreement, the Option Plan, and any ROFR, including the delivery of notices, consents, transfer instruments, tax forms, spousal consents if applicable, and representations and warranties customary in private transfers;
(d) obtain and rely upon any Audited NAV or valuation mandated or permitted by the governing documents and, if necessary, appoint an independent auditor of recognized standing to perform or verify such valuation; and
(e) allocate and pay all taxes, transfer fees, legal and accounting fees, and other expenses incident to holding, exercising, or transferring the Equity Interest and Unexercised Options.
ARTICLE 3. DEBTS, EXPENSES, AND TAXES
3.1 Debts and Expenses. My Executor shall pay from my residuary estate all enforceable debts, administration expenses, and funeral expenses as soon as practicable.
3.2 Taxes and Apportionment. All estate, inheritance, succession, and similar death taxes (including taxes triggered by option exercise or by deemed dispositions) imposed by reason of my death shall be paid from my residuary estate, without apportionment, unless governing tax law mandates otherwise. My Executor may elect and allocate deductions, credits, and elections (including option exercise timing) to minimize overall tax burden.
ARTICLE 4. SPECIFIC DISPOSITIONS: COMPANY EQUITY AND OPTIONS; RECOGNITION OF ROFR
4.1 Equity Interest. Subject at all times to the Company’s governing documents, applicable law, and any ROFR:
(a) I devise all of my Equity Interest to the Trustee of the Family Trust, to be held, administered, and distributed according to the Family Trust instrument as it exists on my date of death, to the extent permitted by applicable law governing testamentary additions to trusts.
(b) If any ROFR must first be honored, my Executor shall present and offer the Equity Interest in the manner required by such ROFR. If the ROFR is exercised in whole or part, my Executor shall sell the subject Equity Interest to the entitled party(ies) for the price determined in accordance with the ROFR, which, per the governing documents, shall be the Audited NAV as certified by the Company’s independent auditor (or other specified valuation mechanism). The net sale proceeds shall be paid and assigned to the Trustee of the Family Trust as the substitute devisee.
(c) If and to the extent any portion of the Equity Interest is not subject to, or is not acquired under, the ROFR, such portion shall be transferred in kind to the Family Trust, subject to all transfer restrictions and approvals, including any required board or shareholder consent. My Executor shall use commercially reasonable efforts to obtain any required consents but shall not be liable if consent is refused or delayed.
(d) My Executor is authorized to enter into customary share purchase agreements, representations, indemnities (limited to the assets of my estate), and post-closing adjustments necessary to implement the ROFR and transfer.
4.2 Unexercised Options. With respect to Unexercised Options, to the fullest extent permitted by the Option Plan and applicable law:
(a) My Executor shall evaluate whether exercise is economically prudent (taking into account strike price, expiration, post-death exercise windows, tax impact, liquidity, and ROFR pricing) and may exercise such options in cash, cashless, or net-settlement form.
(b) Any shares acquired upon exercise shall be transferred to the Family Trust, subject to the ROFR and transfer restrictions; if sold pursuant to ROFR, the net proceeds shall be paid to the Family Trust.
(c) If exercise is not permitted or not prudent, my Executor may allow options to lapse. Any death benefits or cash-out rights under the Option Plan shall be collected for the benefit of the Family Trust.
4.3 Savings Clause; Priority of Governing Documents. Nothing in this Will shall be construed to override or impair the Company’s charter, shareholders’ agreement, the Option Plan, or any binding ROFR. In the event of conflict, such governing documents and applicable corporate law control. This Will confirms my intent that, after honoring those instruments, the economic benefit of my Equity Interest and Unexercised Options pass to the Family Trust.
ARTICLE 5. RESIDUARY ESTATE; POUR-OVER TO FAMILY TRUST
5.1 Pour-Over. I devise, bequeath, and appoint all the rest, residue, and remainder of my estate, of whatever nature and wherever situated, including any property that I may have a power of appointment to appoint, to the Trustee of the Family Trust, to be added to and held under the terms of the Family Trust as existing at my death, to the extent permitted by law (including, where applicable, the Uniform Testamentary Additions to Trusts Act or its local equivalent).
5.2 Failure of Trust or Invalidity of Pour-Over. If, at my death, the Family Trust does not exist, cannot receive additions, or the pour-over is ineffective, then I create under this Will a testamentary trust (the Testamentary Family Trust) for the same beneficiaries, purposes, and dispositive provisions stated in the Family Trust instrument dated [date], which is incorporated by reference for identification of beneficiaries and dispositive terms, and shall be administered by [Trustee] with all administrative and investment powers customary for modern trusts.
ARTICLE 6. FIDUCIARY ADMINISTRATION; INVESTMENT AND BUSINESS POWERS
6.1 Business Interests. My Executor and any Trustee may retain, manage, and operate any closely-held business interests, including the Equity Interest, without diversification, for such time as they deem advisable; vote securities; enter buy-sell agreements; and engage advisors. They may rely on valuations from independent auditors or appraisers and shall not be liable for declines in value absent willful misconduct.
6.2 Professional Advisors. Fiduciaries may employ and compensate legal counsel, auditors, tax advisors, valuation experts, and brokers and may rely in good faith on their opinions.
6.3 Exculpation and Indemnity. Fiduciaries acting in good faith shall be indemnified from the estate or trust for liabilities incurred in administration, except for bad faith, willful misconduct, or gross negligence.
ARTICLE 7. DIGITAL ASSETS
I authorize my Executor to access, handle, and dispose of my digital assets and electronic communications to the extent permitted by applicable law and service-provider terms, and to request disclosure or termination of accounts.
ARTICLE 8. SURVIVORSHIP; PER STIRPES; ANTI-LAPSE
Any devisee who fails to survive me by [30] days shall be deemed to have predeceased me, except as otherwise required by law. Distributions to my issue shall be per stirpes. Statutory anti-lapse provisions shall apply only to the extent not inconsistent with this Will.
ARTICLE 9. NO-CONTEST
If any beneficiary contests this Will or any trust established or funded hereunder without probable cause, such beneficiary’s interest shall be forfeited and shall pass as if such beneficiary predeceased me, to the maximum extent permitted by applicable law.
ARTICLE 10. GOVERNING LAW; CONSTRUCTION
This Will shall be construed and governed by the substantive law of my domicile at death with respect to validity, interpretation, and disposition of movables, and by the law of the situs for immovables, subject to applicable choice-of-law rules. Headings are for convenience only.
EXECUTION
I, [Full Legal Name], declare that I signed this Will on [date] at [city], in the presence of the undersigned witnesses, who witnessed and attested my signature at my request, and that I declare this instrument to be my Last Will and Testament.
Testator: _______________________________
[Full Legal Name], Testator
ATTESTATION
On [date], the Testator declared to us that this instrument is the Testator’s Last Will and Testament, and the Testator signed it in our presence. We now, at the Testator’s request and in the Testator’s presence and in the presence of each other, subscribe our names as witnesses, affirming that the Testator appeared to be of sound mind and under no undue influence.
Witness #1: _____________________________
Name: [Name] Address: [Address]
Witness #2: _____________________________
Name: [Name] Address: [Address]
[Add notary acknowledgment and/or self-proving affidavit if recognized/required in the governing jurisdiction.]
SCHEDULE A (INCORPORATED BY REFERENCE; FOR IDENTIFICATION)
A-1 Company. [Full legal name; jurisdiction and entity form; registration no.; address].
A-2 Shareholders’/Members’ Agreement. [Title and date], including ROFR providing for purchase at Audited NAV; any amendments.
A-3 Option Plan and Awards. [Plan name, date] and Award/Option Grant Notices and Agreements dated [list].
A-4 Family Trust. “[Name of Family Trust], dated [date],” currently administered by [Trustee], with principal place of administration [address].
PRACTICE NOTES FOR LOCALIZATION (TO BE COMPLETED BY COUNSEL)
- Will Formalities. Insert statutory formalities and self-proving affidavit language per the testator’s domicile (e.g., two disinterested witnesses; notarization if required).
- Pour-Over Validity. Confirm enforceability under local law (e.g., Uniform Testamentary Additions to Trusts Act or equivalent) and that the Family Trust is in existence and sufficiently identified, with a copy accessible to Executor.
- Forced Heirship/Elective Share/Community Property. Confirm compliance with any compulsory share regimes for spouse or descendants; add spousal waiver or marital property agreement references if applicable.
- Corporate Transfer Restrictions. Confirm the precise ROFR mechanics, valuation provisions for Audited NAV, required consents, and any post-death transfer limitations (including board approvals and timing). Insert mandatory clauses from the shareholders’ agreement verbatim if required.
- Option Plan Post-Death Treatment. Verify post-mortem exercise windows, transferability limits, and whether options may be exercised by an estate or must be cashed out. Adapt Clause 4.2 accordingly.
- Tax. Insert jurisdiction-specific tax apportionment and qualified disclaimers language; address potential Section 83/ISO/NSO or local equivalents for equity compensation; address estate/inheritance tax situs issues for cross-border holdings.
- Execution Package. Provide signing instructions ensuring both witnesses are disinterested and physically present (or comply with authorized remote witnessing standards, if any).
REQUESTED INFORMATION TO COMPLETE FINAL DRAFT
- Testator’s full legal name, domicile, and citizenship(s).
- Marital status and full details of spouse/children (if any).
- Exact legal name, jurisdiction, and form of the Company; copy of charter, shareholders’ agreement, and ROFR clause.
- Details of the 40% Equity Interest (class, number of units/shares, certificate numbers if certificated).
- Option Plan and award/grant documents, including post-death provisions.
- Family Trust instrument and trustee details.
- Names and details of Executor(s) and alternate(s).
- Any specific bequests or charitable gifts (if desired).
Important: Do not sign this Will until it is reviewed and conformed to the governing jurisdiction’s formalities and to the Company’s binding documents.
