Help with Your Legacy
Do I Need a Will?
This post excerpts Chapter 12 of the 20-chapter, 50,000-word guide Help with Your Legacy available in paperback at publisher’s discount or in digital format. See excerpts of other guides on jobs, careers, marriage, divorce, faith, money, business startup, and charities at help-with-your.com.
Eugene had no illusions. He knew that his overseas travels carried significant health, safety, and security risks. And so Eugene wanted to be sure that his legal affairs, especially those involving his family, were fully in order. He was pretty sure that he should get a will in place. At least, that’s what he’d heard, although Eugene didn’t really know why, what the will would accomplish, or what to do about it. But he figured that he’d better find out fast and then do something about it. He had just two weeks left to get everything in place before he left on his overseas trip.
Definition
A will is a properly executed legal instrument that governs the payment of your debts and disposition of your net assets after your death. State law determines the requirements for proper execution of a will, to ensure the will’s reliability. You can imagine the lengths that dishonest presumptive heirs might go to forge or alter a will, to gain more favorable terms than the decedent’s actual will provided. State law may also place limits on a will, for instance by requiring notice to creditors and payment of just debts out of the decedent’s estate before any designated distributions to beneficiaries under the will, whether the will provides for those debt payments or not. State law may also grant rights superior to the will, such as the right of a spouse to elect a share against the will. State law may also determine what assets fall within or outside of the decedent’s estate, such as real or personal property held jointly with rights of survivorship. A will is, in short, an imperfect but still helpful and generally effective instrument, for determining your legacy. Put a thoughtful will in place, and you’ll have guided and aided your legacy.
Purpose
You execute a will for several purposes. Obviously, you execute a will to ensure that the individuals or entities whom you wish to favor with your net assets after your passing receive those assets. Yet a will has other purposes. Your will also typically designates the personal representative, sometimes called an executor, who will ensure that everyone carries out your wishes. Naming your personal representative is an act of honor and trust. You may, for instance, honor your eldest adult child with the responsibility of acting as your personal representative, presuming you trust your eldest child and your eldest child has the skill, judgment, and maturity. Your will may also name recommended guardians for your minor children, subject to the probate court’s approval. Your will’s overall purpose is to ensure reasonable peace, order, and efficiency in the management of your affairs after your passing. Putting a will in place can make that peace and order an important part of your legacy.
Timing
The time and reasons to execute a will can depend on a variety of factors. One factor is, of course, the likelihood of one’s demise. Yet we often can’t predict with any degree of certainty just when our time might come. Certain fatal illnesses may be diagnosable, gradual, and relatively predictable as to the timing of their end. But what about motor vehicle accidents or sudden illnesses like heart attacks, strokes, seizures, and comas? Unfortunately, even the young face mortality risks. Based on our natural mortality alone, every adult capable of executing a will, in most states meaning anyone who is at least age eighteen, should have a will. But consider some other factors. Anyone with children who wants a say in who cares for the children in the event of their sudden demise should have a will in place. Anyone with significant assets to distribute in the event of death should also have a will in place. Anyone who wishes to reduce probate costs and family uncertainty should have a will in place. Anyone who wishes to designate a trustworthy person to manage their estate should have a will. And the list goes on. Don’t wait for more reasons to put a will in place. Instead, keep a will in place, and update it with major life changes like marriage, childbirth, divorce, remarriage, and other significant changes in family relationships, assets, and property or legal interests. A will is a key tool in preserving and enhancing your legacy.
Intestacy
When considering whether and when to execute a will, you might wonder what happens when someone passes without a will. A person who passes without a will dies intestate. The laws of intestacy then determine the administration and distribution of their estate through a probate court proceeding. Probate ensures an orderly and fair process, including notice to creditors, payment of debts, and distribution of net assets according to the laws of intestacy. Your state legislature makes certain presumptions in its laws of intestacy about how you would have distributed your estate if you had made a will. Intestacy laws vary from state to state but generally place the spouse in first priority, children in the next priority, then parents, siblings, and other blood relatives in subsequent priorities, if none at higher priorities are living. Relatives generally only receive a share if the decedent had no living relatives at a higher priority. Your spouse and children may be an exception in some states, where both priorities might receive estate shares. Leaving no will can substantially increase the costs of administering your estate. It can also leave your family confused and disputing as to inheritance rights. Intestacy discourages and defeats legacies. Get a will in place.
Heirs
Whom you choose to favor with an inheritance of a share of your net assets can be a surprisingly complex issue. Your spouse is certainly a natural object of your affection. Many individuals leave everything to their spouse. Doing so gives the surviving spouse full control and support, and the most-stable transition, while simplifying succession. The surviving spouse would then have the opportunity and obligation to bequeath the full marital estate to others on the surviving spouse’s passing. Yet other individuals simultaneously wish to recognize and favor their children, while providing for their spouse. Whether to include adopted children, stepchildren, children out of wedlock, children from a prior marriage, and foster children can be a related issue. If a child has already passed, whether to pass that child’s share to the child’s children (the testator’s grandchildren) would be another question. How to treat prior spouses, parents if living, grandchildren, siblings, and other blood relatives can be other questions. Whether to favor children or siblings with special needs, through a trust for their support, can be another significant question. Make thoughtful plans to enhance, rather than detract from, your legacy. See the next chapter specifically on heirs.
Property
To enhance your legacy, also be thoughtful about what property you bequeath to whom. In theory, you could simply distribute proportions of your estate, such as one half to your spouse and the other half divided equally among your three children. Proportional divisions presume the liquidation or valuation of everything you own, to configure the proportional distribution. But some property may have greater value to one heir than to another heir. Your spouse, for instance, might want to remain in the marital home. So wills often first distribute specific property, such as the marital home to your spouse and the family cottage in equal shares to your three children, and then provide for a proportional division of the remainder. If the state’s law permits it, wills may even invite the testator to make a handwritten and signed list of smaller items to attach to the will, bequeathing personal items. An athletic son might receive your golf clubs and tennis rackets, for instance, while a studious daughter might receive your book collection. If you make no list, your adult children may agree to divide personal items sentimentally anyway, presuming their ability to agree. Specific bequests can be a great way to personalize and enhance your legacy.
Disputes
When preparing your estate plan, don’t overestimate your surviving family members’ ability to agree on your estate’s management and distribution. Your family members may have great relationships. But even if so, your passing can affect those relationships. The generosity and warm, conciliatory tone family members may have shown in your presence may turn cold in your absence and in their grief. Making a clear, written, enforceable, well-thought-out estate plan can reduce or eliminate disputes, preserving and enhancing your legacy. Your willingness to think clearly and sensitively about your surviving family members even in anticipation of your own demise can be a great legacy. Indeed, that thought and devotion to those whom you wish to favor, even after your passing, defines a legacy. To enhance your legacy, treat your estate plan accordingly.
Requirements
State laws, varying in small but significant respects, define the requirements for executing an enforceable will. If the document you prepare does not meet those requirements, and you leave no other properly executed will, your estate will pass by the laws of intestacy, not the terms of your unenforceable document. Take care executing your will. The typical requirements are for a writing that you sign at its end in front of two adult and competent witnesses to whom the will grants no interest who each also sign attesting to your competence and signature. Better if you date the will so that your heirs can tell which of two or more wills is the latter. Better yet if you also sign a self-proving affidavit in front of a notary public who notarizes the affidavit attesting to your competence and signature. States may provide that a will accompanied by a self-proving affidavit is self-executing, without the necessity of calling witnesses to authenticate it.
Alternatives
States may permit alternatives to the above requirements. About half of the states recognize a handwritten or holographic will. A holographic will is a document written in the testator’s own hand and that the testator signs at the end, clearly indicating that the document is the testator’s will. Even where recognized, holographic wills can be problematic in that in probate proceedings, they generally require a witness to attest to the testator’s handwriting and signature, and may also require testimony as to the testator’s sound mental state and freedom from duress or coercion. A few states provide for a statutory will completed on the state’s specific statutory form, and signed and witnessed as the form requires. A statutory will, although inflexible, can be a quick, inexpensive, short-term solution. See the example statutory will form among the exhibits at the back of this guide.
Retention
Once you execute your will, some states permit you to file it with the county probate court to ensure its availability on your demise. Filing your will with the probate court may be a good idea if you have untrustworthy family members, housekeepers, or caretakers who might access it to alter or destroy it. On the other hand, filing a will with the probate court may complicate making your own later amendments to the will, where you would want to also file each amendment to ensure that the probate court would honor your last wishes. If you file your will, you should keep a copy for your own reference. You may also wish to give a copy of your will to your designated personal representative for safekeeping. If you do not file your will, you may keep the original with the attorney who prepared it or in your own possession in a secure location among your other papers where your survivors would look for it on your demise. And again, consider giving a copy to your personal representative and perhaps also to any heir receiving a substantial bequest. You be the judge, though, whether to share your will with family members before your demise. Don’t stir a hornet’s nest. Keep your legacy in mind, including the peace, order, and good relationships you wish to preserve.
Provisions
Your will should generally begin with a clear statement of your name, your county or other locale, your marriage and children or other family state, and that it is your last will and testament. See the example will among the forms at the end of this guide. Wills then typically provide for the payment of the costs of administration of the estate and the decedent’s just debts. Your debts generally survive your death unless the loan or credit terms provide otherwise. Retiring debts before your demise, if you are able, can speed and simplify estate administration and enhance your legacy. A will’s next section generally provides for any specific bequests to identified heirs. The will’s next section generally provides for proportional distribution of the estate to identified heirs. If you have minor children, a next section would name your recommended guardians for your minor children. The last section would name your personal representative to administer the estate and grant the representative specific powers. Your signature, the date, the witnesses’ signatures, and any notary public block and signature would end the document. The document may also indicate the name of its attorney preparer. Again, see the example will among the forms at the end of this guide.
Amendment
You may generally amend or change your will at any time after its execution, as long as you remain mentally competent to do so and free of coercion or duress. You may either revoke your prior will and replace it with a new will, or you may make an amendment to your existing will with what lawyers call a codicil. State laws generally have the same requirements for executing a codicil as for executing a will. The codicil would thus generally need your signature, the signatures of two competent adult disinterested witnesses, and a clear reference to the will that the codicil amends. If, instead, you revoke your prior will, you may do so by adopting the new will according to the state’s requirements for execution, while stating the prior will’s revocation. Destroying the prior will and all copies of it may further reduce confusion or the prospect for nefarious substitution. Don’t hesitate to amend your will or make a new will whenever you experience major changes in your family, such as births, deaths, marriages, and divorces, or in your property, such as business purchases or sales, or significant financial gains or reversals. Keep your legacy in mind, and update your estate plans accordingly.
Guardianship
Recommending guardianship of your minor children may be the most important aspect of your will, especially if you are the parent of younger children. Your spouse would obviously remain the custodial parent on your demise. But in the event that your spouse predeceases you or passes in the same terrible accident that you do, you and your spouse would want a say in who should take on guardianship of your children. Discuss the decision with your spouse and with any potential guardian or co-guardians you wish to name. Your parents, your children’s grandparents, may be natural guardians but may also be at a distance or physically, mentally, and emotionally less capable than you would prefer. Close friends with children of similar age and in the same school system may be preferable. Your will may also name back-up guardians if your first choice of guardians are unable or unwilling to serve. The probate court must approve guardianship but may defer to your recommendation.
Representative
Whom you choose as your personal representative, or executor or administrator as some states call it, can also be an important decision. Your personal representative has the responsibility for carrying out your wishes as expressed in your will, in accordance with state probate laws. You should generally choose a personal representative whom you trust, who is willing to serve, who resides in your locale or nearby, and who knows you well. Your eldest adult child is a common choice, if not another adult child geographically nearer to you and with greater administrative skill, a more-flexible schedule, or other advantages. You may name co-personal representatives, but then your estate depends on their agreement, and they may both need to sign documents, somewhat complicating matters. You may alternatively choose an attorney personal representative, such as the attorney who prepared your will, or a corporate personal representative such as a bank or trust company.
Representation
You should generally retain an attorney to help you prepare and execute a will. You can see both the rigor of the execution requirements and the complexity and importance of the substantive issues. Procedural or substantive missteps can spoil your legacy, which is worth protecting with qualified legal counsel. If you don’t know an estate-planning attorney with whom you wish to work, ask trusted friends and acquaintances for a recommendation. Use the local or state bar association’s lawyer referral service. Meet with the attorney candidate, and confirm the cost or estimated cost of services up front. You may alternatively find services and templates online. The risks of using online services include that they will not help you meet your own state’s specific requirements, will not adjust your estate plan to your peculiar interests and needs, and will not adequately advise you as to your options and interests. Your need to find two adult, competent, disinterested witnesses to execute your will gives you another reason to use a local attorney rather than an online service or template. Be wise. It’s your legacy.
Related
Individuals executing a will often execute other legal or advisory documents along with the will. Those documents can include powers of attorney for legal and financial matters, durable powers of attorney for healthcare decisions, a trust, deeds or titles for joint ownership with rights of survivorship, and funeral and memorial plans. The attorney whom you retain to help you prepare and execute your will may offer assistance with these other common documents. The following chapters of this guide address powers of attorney and trusts. You need not have any involvement in funeral and memorial plans. You may instead leave those details to your surviving spouse or other relatives. On the other hand, you may wish to shape your legacy in part through an appropriate memorial service, with a choice of scripture verses or passages, choice of music, or request that a certain special individual offer a eulogy. You may also wish that your grave marker bears witness to certain commitments in your life. Include those details in your funeral planning if you wish. Doing so may unburden and hearten your spouse or other surviving relatives in their time of mourning. See the final chapter of this guide for more discussion of funeral plans as a legacy.
Survivorship
You may have the option of passing some of your property through joint ownership with survivorship rights, rather than under a will and through probate. Any property held with a deed or title as indicia of ownership gives you the option of adding a second person or additional persons as owners with rights of survivorship. Spouses commonly deed and hold their marital home as tenants by the entireties, meaning as a married couple with rights of survivorship. If either spouse passes, the other spouse owns the home. The same can be true with vehicle titles. If both spouses are on the vehicle title as joint owners, and one spouse passes, the other spouse owns the vehicle. Taking a death certificate to the secretary of state may get the survivor a new title in their sole name. You could thus add either your spouse or an adult child or other person to deeds for real property or titles for personal property, as joint owners with rights of survivorship, so that the property does not pass under your will through probate. But beware making these arrangements for the way in which they can create disproportionate shares, gift tax liabilities, and other complexities. Get sound legal advice before doing so.
Taxes
For most Americans, estate taxes are not a significant consideration in estate planning because of the relatively larger values your estate must reach before implicating the taxes. Your estate may need to have a value in the millions of dollars before creating significant potential tax liabilities. But get qualified legal and tax advice. Congress continues to change the estate tax exemption amount. Gift taxes may also apply to certain transfers outside of a probate estate, as just indicated above. Be wise about taxes, too, to preserve and enhance your legacy.
