[vc_row][vc_column][vc_column_text]
When you think of estate planning, a Will is usually the first thing that comes to mind. In fact, most people who contact me tell me they don’t need anything complicated for their estate—just a Will. Indeed, Wills have a reputation as the number one estate planning tool and can be seen all over TV shows and movies, from the dramatic “reading of the Will” (which rarely happens in real life) to a fictional daughter-in-law character plotting murder because she thinks she and her husband are named in the Will of an eccentric great aunt who happens to be a millionaire.
But although Wills are a key part of your estate plan—and a big part of the movies—relying on a Will alone won’t solve your estate planning needs, no matter what Hollywood says. Instead, using just a Will to plan your final wishes is likely to leave your loved ones with an expensive mess that won’t distribute your assets in the way you intended.
A will alone does not address decisions during incapacity. After death, assets passing under a will generally require probate, subject to applicable exceptions.
If you don’t want to leave your family with a mess if something happens to you, it’s important to know how a Will works and when it can be used to benefit you and your family.
What Exactly Is a Will and How Does it Work?
A Will is a written document that directs how the creator of the will wants their possessions disposed of after their death. The creator of the Will is called the testator or testatrix. In your Will you can name someone you trust to manage the distribution of your assets, called your personal representative or executor. You can also write out what you want to have happen to your property, what charitable gifts you want to make, and who will receive them.
A Will can be a complex document or a very simple document. You could theoretically even write your Will on a napkin if you really wanted to. (But please don’t do that because that never ends well for the family!)
With that said, a Will isn’t a legally binding document unless it’s executed according to the laws of the state where you reside. In general, you need to sign your Will in front of a witness, and sometimes a notary.
Some states have laws that allow you to create a Will that isn’t witnessed at all so long as it is handwritten by the testator themselves. But because every state has different laws for the creation of a Will, it’s important to consult with an experienced estate planning attorney (like me) to create your Will rather than trying to write your own.
A Will Requires Probate Court
One of the biggest estate planning myths I hear from clients is the belief that by having a Will, their loved ones won’t need to go to court after they die.
his is sadly the opposite of the truth.
A will generally directs assets through probate after death. Whether probate is required depends on the assets, ownership, beneficiary designations, and applicable exceptions.
Once your Will is admitted to the court after your death, your personal representative or executor will be given official authority to move your assets under the court’s supervision. This process is intended to address distribution under the will and applicable law and that the court can intervene if there are any disputes over who gets what.
While court oversight can be helpful if there is any confusion or disagreement about your estate, the probate process is long and expensive. For very small estates the process may take about 6 months, but for most estates, the process can take 12 – 18 months or sometimes even more.
Due to the length and complexity of the process, going through probate can easily cost your family tens of thousands of dollars. Some states even require that probate cost a certain percentage of your estate’s value.
In addition, because probate is a public court proceeding, your Will becomes part of the public record upon your death, allowing everyone to see the contents of your estate, who your beneficiaries are, and what they’ll receive. Unfortunately, it’s not uncommon for scammers to use this information to try to take advantage of young or vulnerable beneficiaries who just inherited money from you.
A Will Does Not Apply to All of Your Assets or All of Your Needs
Although movies make it seem like you can and should leave all your property to your loved ones through your Will, a Will actually only covers certain items of your property, including any property owned solely in your name and any property that doesn’t have a beneficiary designation.
A Will does not cover property co-owned by you with others listed as joint tenants or owned as marital property, meaning you can only give away your share of any property you own with others, not the entire property.
Any assets that have a beneficiary designation, like retirement accounts or life insurance, are not controlled by your Will at all but will instead be paid out to the person listed as your beneficiary on each account. Because of this, it’s especially important to make sure your account beneficiaries are up to date.
In addition, a Will has no power until you die, so you can’t use it to give someone you trust the power to make decisions for you if you’re incapacitated due to illness or injury. Even if you named someone in your Will to manage your estate or watch over your children, that person will have no authority to do so while you’re alive.
Don’t Just Get a Will, Get an Estate Plan
With all the issues that using a Will for estate planning can create, you might be wondering why a Will is even used at all. The thing is, a Will isn’t the one-and-done solution that most people are led to believe by TV shows and even some lawyers.
Instead, a Will should be used as a piece of your overall estate plan, not as the entire plan itself. And ideally, your Will shouldn’t even need to be used at all.
How can that be? Well, an estate plan isn’t just one or two documents—it’s a range of tools and coordinated planning that is intended to address the needs of the people and things you care about.
A trust can provide instructions for property properly transferred into it and may help those assets pass outside probate. It can also identify who should manage trust assets during incapacity, subject to the trust terms and applicable law.
A trust may offer privacy for trust assets, although disputes or other legal proceedings can involve court records and public disclosure.
When using a Trust-based estate plan, you’ll still have a Will, but your Will should only need to serve as a backup and safety net to make sure that any assets that are accidentally left out of your Trust at your death are added back into your Trust.
And, even more important than both a Will and a Trust, is an inventory of your assets so your family knows what you have, where it is, and how to find it when you become incapacitated or die. Without an inventory of your assets, your family will be literally lost when something happens to you. A comprehensive inventory updated throughout your lifetime is a critical, and often overlooked, piece of an estate plan that is not “just a Will”.
If you’re ready to see how having an estate plan for your family is different than having “just a Will,” book a quick chat with us to find out how to schedule your Legacy Planning Session. During the session, we’ll review an inventory of everything you have and everyone you love, and together look at what would happen to your possessions and loved ones when something does happen. Then, I’ll help you develop a plan designed around your goals and discuss how it may support loved ones when you can’t be there—at your budget and within your desires.
Most importantly, I don’t just create documents. My approach is heart-centered, relationship-based, and counseling-focused. I guide you and your family through every step of the process, now and at the time of your passing. I even help all of my clients pass on something more valuable than their money—their values, stories, and wisdom—through a Family Legacy Interview. Ask me more about that when we chat on the phone!
This article is a service of AMO LAW, Personal Family Lawyer® firm. We do not just draft documents; we help you make informed decisions about life and death, for yourself and the people you love. That’s why we offer a Legacy Planning Session, during which you can become more financially organized and consider planning choices for the people you love. You can begin by calling our office today to schedule a Legacy Planning Session and mention this article to find out how to get this $750 session for just $497.
The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/2″][vc_single_image image=”7555″ img_size=”large”][/vc_column][vc_column width=”1/2″][vc_empty_space][vc_column_text]
6 Major Errors When Hiring an Attorney
No Time For Mistakes
Learn the 6 Common Mistakes People Make When Hiring an Attorney
Let me help you plan for the people and things you love, with steps intended to reduce the likelihood of court involvement and conflict. Enter your name and email address so we can send it to you. We will never spam you.
[/vc_column_text][vc_column_text]
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_empty_space][/vc_column][/vc_row][vc_row][vc_column][vc_column_text][/vc_column_text][/vc_column][/vc_row]