Five Things to Consider When Planning to Write your Will

1. Who Should Receive the Estate?

For some, the passage of property equally to their descendants is the norm. However, each family dynamic is different, and your estate plan should reflect the same standards and ideals that you act on today. Many clients like to include friends, charities and other organizations that they deem important and deserving. In the absence of a Will, your heirs will receive your Estate under a system designed by the legislature. A well-drafted Will is not so rigid, and can be tailored to fit your wishes precisely.

2. Who Will Manage the Estate?

With a well-drafted Will, the person of your choosing can administer your Estate largely free of supervision by a Court. They will gather up the assets of your Estate, pay any proper debts and distribute the remainder to your beneficiaries. When selecting the person to fill this role, it is wise to consider their age, ability to handle professional matters and their relationship to you and the beneficiaries that they will ultimately have to deal with. Their position is one of trust and confidence, and the task of picking the right person is as important as the tasks that they will be asked to carry out.

3. What if the Beneficiaries are Young or Incapacitated?

Estate planning focuses on contingencies – the “what ifs” of life. Some are more likely than others. What if my spouse dies before I do? What if our children are minors when I die? Good planning can provide good answers. Your Will might include provisions that nominate guardians for minor children. It might include trust provisions to ensure that property received by a minor is held and used for their benefit until they reach a specified age. Rarely can a contingency not be planned for when a well-counseled client sits down to execute an estate plan.

4. What Happens to the Non-Probate Assets?

Many of the largest assets in an Estate are not even technically part of the Estate. They pass to designated beneficiaries pursuant to an agreement with a life insurance company or a retirement plan administrator. The best estate plans harmonize these probate and non-probate assets. For example, where one child is provided for significantly by a life insurance policy, the Will may balance things out by favoring the other child a bit more with other assets. Many clients fail to update their beneficiary designations when they sit down to revise their Wills, but the decisions made in regard to these documents are as important as those that you will make when creating your Will.

5. What if the Beneficiaries are Unhappy with my Choices?

Estate disputes happen. In most cases that I have encountered, the seeds of Will Contests and beneficiary fights are sown long before the testator even dies. Clients know their families better than a lawyer, and some frank and open family discussions may avert situations like this. But well-drafted Wills typically go a step further to include provisions that discourage fighting among beneficiaries, just in case. Your estate plan should please you, and it should be executed in a manner that best protects the decisions that you have made concerning your legacy.

Estate Planning Conversations

For a lot of people, death and their own fragile mortality is the last thing that they want to discuss with anyone – let alone loved ones. We know that we are not going to live forever, but pondering our inevitable demise can steal the sun right out of the day, and so we tend to focus on happier things. For the same reason, parents and children sometimes tend to avoid openly discussing Wills, Trusts and all of that legal business that will be left when someone dies.

Yesterday’s New York Times included a great article about those challenging conversations, and the benefit of having them well in advance. The centerpiece of the story is a lawyer in Seattle. He has two children and has been separated from his wife, but not divorced, for around 30 years. He also has a brain cancer, and did not have a Will. In his state, had he died without a Will, his estate would have passed to his wife. He wanted to avoid this and opened up candidly with one of his daughters, who learned of his intentions and helped him find a lawyer to put his plan down on paper.

It’s a nice story and yes, it’s good to know that you can open up to your children to discuss your estate planning. Many of our clients take the same path of least resistance. I’ve drafted countless Wills that leave a client’s estate to the surviving spouse and then equally to the children. But occasionally, depending on the facts, things get changed up. Perhaps the spouse only gets a lifetime interest in the home, and the children inherit everything else, except for the child who receives nothing. Neither the spouse nor the children have any idea about the client’s plan until the client dies and the Will surfaces. Talk about awkward.

Undoubtedly, the client had a perfect reason for putting that plan into effect. It all made sense and the principles behind the decisions were sound. But the principles and reasons were kept by the client. The client never sat down with the spouse or children to share. So the spouse sues – the prodigal child sues – everyone sues because nobody’s happy about that Will. Twelve months and tens of thousands of dollars later, the suits are settled.

I’m not willing to bet that a conversation between the client, the spouse and the kids could have avoided all of that, but it probably couldn’t hurt. So much litigation in our area stems from resentment and the fact that a spouse or child is treated differently in the client’s Will than someone else. The Times article includes the thoughts of some experts, who believe that a series of conversations about these kinds of delicate issues works best. I agree.

Sadly, if a family has some inner turmoil ahead of the client dying, you can usually expect that turmoil to break loose after the fact. I tend to believe that litigation is unavoidable in some cases. But the Times article does make an excellent point for those situations where all it takes is a few conversations with your loved ones to openly discuss your plans.