There are three documents everyone needs as part of their estate plan. So far in this series, we’ve covered advanced directives/living wills and financial powers of attorney and why you need both. Finally, you need a will, formally called Last Will and Testament.
A will is probably the best-known estate planning document. Any time a celebrity dies without a will, it makes national news (even though for the super wealthy, a will is likely the bare minimum of what they needed to protect their estates).
One thing I’ve learned from talking to people about estate planning over the years is that everyone “knows” it’s something they need to do. And a lot of people stress because they haven’t done it. But only about 55% of Americans have even a basic will (and I’ve seen studies report an even lower percentage).
Some reasons why:
It’s too expensive (it doesn’t have to be);
I don’t have an “estate” (everyone has an estate-some are more complicated because those people have more money, but even if you’re living paycheck to paycheck, you have an “estate”);
I don’t want to think about dying (no one does! But, I’ve yet to meet the person who was kept alive and safe by avoiding the issue of what would happen upon their death).
Trust me, I understand. I’ve been practicing estate planning for 12 years now, and I’ve seen some of the bad situations that could have been avoided with a little planning. But, even knowing all that, it took my husband and I WAY longer to put our estate plan in place than I would like to admit.
As uncomfortable as the process of creating an estate plan may be for you, it’s one of the most important things you can do to protect yourself and your family. Unfortunately, you never know what could happen, so it’s best to be prepared for whatever life throws your way.
What happens if you die without a will?
Every state has what’s called “intestacy laws”. These laws say what happens to your property when you die if you don’t have a will. Intestacy laws are what allow some people to inherit money from their great, great aunt Bonnie whom they’ve never even met. These are usually based on your family relationships.
In Kentucky, if you die without a will, if you’re married and have children, your spouse gets the first $30,000 of your personal estate (not real estate), plus ½ of the other property. Your children get the other ½. If there are surviving children, but no surviving spouse, the children get everything.
If there’s a surviving spouse, but no surviving children, the spouse still gets the $30k and half of the property, but now the other half of the property goes to the deceased person’s parents. If their parents are not living, it goes to brothers & sisters. If they don’t have siblings, the other ½ goes to nieces and nephews, then to aunts & uncles. Only if there are no children, parents, siblings, nieces/nephews or aunts/uncles does the rest of the estate go to the spouse.
What is a will?
A will is a document, made by a person designating how they want their estate distributed when they die. The requirements for a valid will vary from state to state, but since I practice in Kentucky, we’ll use it as an example. In Kentucky, for a will to be valid it must be in writing, made by someone 18 years of age or older and of sound mind. It must be signed in the presence of two witnesses who will also sign.
Words to know
This is the person who is making the will. Testator is a male and testatrix is a female. They must be over 18 (some exceptions), of sound mind (must know who their family is and what they own), and sign in the presence of witnesses
This is the person who will be handling your estate. Typical jobs include: starting & participating in probate (court proceedings) for the estate, closing/opening bank accounts, paying bills, and making distributions to beneficiaries. This is a big job, so it’s important to choose someone competent and organized. Also, choose an alternate.
This is the person(s) who benefit from your estate.
These are people who would inherit by law, i.e. intestacy laws.
This is the person(s) you name to have custody of your children. It’s a good idea to include an alternate as well.
If you include a testamentary trust in your will, you will need to name a trustee. A trustee takes possession of the trust property (your estate, e.g.) and manages it for the benefit of the beneficiaries. Include an alternate in case your first choice isn’t available.
A “self-proving affidavit” is not usually required, but it should be included. This is a statement included at the end of the will that basically has a notary notarize the signature of the Testator and the two witnesses.
Historically, the person probating a will had to contact one of the two witnesses to come to court and verify that they witnessed the Testator signing their will. If the witness isn’t available, usually the court requires 2 people who are not closely related to the Testator to come to court and verify the signature. This can be cumbersome, so state legislatures (not sure it’s all available in all states) enacted laws saying if the will has a “self-proving affidavit” no one is required to come to court to verify the signature and the will is automatically admitted.
What is accomplished with a will?
A will is used to:
Distribute property you own at your death.
Name a guardian for minor children.
Set up a testamentary trust (that just means trust created with a will)
Name the executor (the person chosen by you to administer your estate).
There are many other things that can be included in a will, but those are the basics.
Many people create a trust in their will (called a Testamentary Trust) that determines how their property will be distributed and managed if they don’t want their beneficiaries to receive it outright. The most common situation for a testamentary trust is in the case of minor children, because you don’t want your 5-year-old to receive thousands of dollars of inheritance with no instruction on how to manage that inheritance. (The court would appoint someone to oversee the money. But, the child would likely receive all of it at age 18, it adds unnecessary costs to the probate administration, and it can be a pain to have to go through the court to get permission to spend any of that money on the care of the child).
Testamentary trusts can also be used to withhold a child’s inheritance until they achieve a certain milestone like turning 25 or graduating college.
You can also usually list your trust in life insurance proceeds. Life insurance is often the biggest asset we have when we pass, so having it protected for your beneficiaries’ futures is extremely helpful as part of a complete estate plan.
When setting up your testamentary trust you will name a trustee (and an alternate). This is the person, or company, who will manage the trust assets (your kids’ inheritance). This person needs to be ok with money and not in any financial trouble themselves. They should be trustworthy and willing to look after the interests of your trust beneficiaries (probably your kids).
What property do you plan for with a will?
You can plan for any property that you own an interest in individually. So, any bank accounts, personal property, or real estate you own in your own name would be distributed by your will. You can also choose to make gifts of personal property, so if you have family heirlooms or jewelry you want to pass along to specific people, it’s good to include that information in your will.
This does not include any accounts you own with another person with “rights of survivorship”. Those accounts pass directly to the joint owner. If you’re not sure, you can contact your financial institutions ask if you own your accounts “jointly with rights of survivorship”. Houses and real estate are often owned with rights of survivorship between spouses. Check your deed for the exact language used.
In this article we covered what a will is, why you need one, what makes one valid, and what you do with it. A will is just one part of a good estate plan, but it’s an important one.
Having a good estate plan in place protects your family and makes sure your property goes where you want it to go. It also simplifies the administration of your estate for your family, which they will appreciate, trust me. It doesn’t have to be complicated and it’s probably less expensive than you think.
Disclaimer: This site, and all information contained herein or through communication with me, is intended as legal information only. I am an attorney, but I am not your attorney, so nothing on this site, nor any communication with me, shall create an attorney-client relationship. I am not liable for damages or losses based on any action taken, or inaction, based on the information contained on this site. All areas of the law are fact specific and there is no substitute for legal advice from an attorney licensed in your jurisdiction who is familiar with the specific facts and circumstances of your situation.