That is the question!
No, the above statement is not a quote from one of the plays written by Will Shakespeare. But it does pose a question that all of us should and must consider: Do I have that necessary document required by law to legally and cleanly transfer what I have accumulated during my lifetime to and for the benefit of those I really care about – or do I, by default, give over that decision to others?
That necessary document is, of course, a Will, also called “The Last Will and Testament” of you. If you don’t create that document – if you don’t take the time to put down in writing your wishes and have them properly witnessed – the court system of the state in which you claim your residence will make it for you.
By not making a Will, you will have forfeited your right to state who you would like to inherit your “stuff.”
An Enjoyable Task
It’s not every day that you can set about doing something that will save your loved ones so much money and avoid so much heartache and grief. That, in and of itself, should be enjoyable. It is also reason enough to take the time and make the effort to do what every sensible person should do for his or her family members and loved ones.
It’s a sad fact that court records show that 50% to 70% of Americans die intestate, i.e. without having written a legal Will. Among that high number there are people who legitimately feel that they do not have enough property and wealth to be worth the effort to write a Will.
However, if that were me, I would want to err on the safe side and have a Will “just in case.” There are so many situations in which a person receives an inheritance, then dies shortly afterwards without naming who should inherit this windfall! This leaves that decision to a court system that doesn’t differentiate between need and want of people, and that assumes no charitable intent on the part of the deceased.
Whether this is the first time for you in writing a Last Will and Testament for yourself, or you are reviewing an existing Will and finding that circumstances have changed considerably over time, do yourself a really big favor: buy a good book on the subject.
Choose one that has “Wills” and/or “Estate Planning” in the title, maybe even one with a disk tucked in the back cover. You not only will find it interesting and informative, but you will be empowering yourself. You can save both time and money by learning what to do and not to do in the Will-making process.
The following are some overlooked facts you should know before you “set pen to paper” in writing your Will:
Not all State laws are the same in all 50 states and the District of Columbia. While many states will honor the provisions of a Will created by the deceased while living in another state, it can create problems if it needs to be processed in a probate court.
In your Will you must determine whether you are living (and plan on dying) in a community property state, or a common law state. State laws regarding ownership of property determine what you personally can and cannot give away in your Will. This can become quite an issue and embarrassing, especially when it involves second marriages.
In your Will you must show how the property is held that is listed as a gift (bequest) to another person. For example, Jim bought a car and named his wife also on the title. Jim died and listed the car in his Will as a gift to his son from a previous marriage. This gift (bequest) failed because the car is now owned outright by Jim’s widow as the joint owner of the car. Ownership laws trump probate laws.
In your Will you can name alternate beneficiaries in case your first choice does not survive you by 45 days or is not living when you die. This gives the Will writer considerable flexibility and prevents the residual estate from going to someone who is not even the first choice as a beneficiary!
In your Will you must clearly designate your legal residence in order to determine the county and state in which your Will will be submitted for probate. For most people this won’t be a problem, but many people do have vacation homes in other states. Your legal residence will be where you vote, have your driver’s license and where you file tax returns.
If there is no clear evidence of your legal residence, each state where you have a home can claim death taxes against your estate. Probate may be required in both states, even though one may be a limited probate. That means that you will have to name your representative in both states.
In a Will you can name your personal representative and choose to have him or her represent you without posting a cash bond. Even though this bond would ultimately be paid from the proceeds of the estate, it is just one less hassle and expense you can act now to avoid.
In your Will, you can also provide for the distribution of your valued tangible personal property. There are few estates in which there are not items which hold more value than their monetary worth, either in the mind of the giver or in the mind of the intended beneficiary.
These heirlooms and treasures can be identified and delivered into hands that will continue to value them highly. Other less treasured possessions can be given to the recipients so that no one will feel slighted (by order of birth, etc.). The final residual of the estate can be given to a preferred charity.
Testamentary Trust – In your Will you can create a Testamentary Trust into which you can “pour over” (hence the term “Pour-Over Will”) your residual estate after all required taxes and other obligations are satisfied.
But we’ll talk more about the value of trusts in our next newsletter and how they can so well serve the interests of the wise planner.