We all want to insure that our families are well cared for when we pass away. The most responsible way of insuring this is to be sure that you have a well-written and legal will.
Younger men do die from prostate cancer and they often have minor children who will continue to require economic support and perhaps guardians. Even older men with grown children may also need to appoint trustees of family trusts. Many of us also have spouses who will require that we pass adequate wealth on to them so they may continue to live in their current life style.
A well written will should protect your estate from being liable for unnecessary taxes. An improperly worded will can bring aggravation, extra cost and turmoil to your family.
Surprisingly the number of Americans who die without wills is estimated to be as high as 70%. Many people who do have wills have set them up improperly… allowed them to become outdated… have even forgotten exactly what they say.
Make sure that you don’t fall prey to the following common mistakes…
Not having a will. If you die without a will, you die “intestate” and your assets will be distributed under state law. Each state has a different set of laws governing intestate estates. You should assume that your state’s intestacy law will not produce the results you would like.
May people mistakenly believe that assets will bypass probate (the legal process in which a court oversees the distribution of a decedent’s property) if you die without a will, but that’s not true. There are many ways to avoid probate, but failing to execute a will is not among them.
A will by itself will probably be inadequate to insure you are able to preserve your assets and get everything accomplished that you wish. Probate can be costly and assets that pass to your heirs through your will must go through probate. Probate can create large legal fees, and if the will is contested there will be additional legal fees and time delays as the court will be required to oversee the process.
Using your will as your entire estate plan may not provide adequate estate tax-planning opportunities. Poor estate planning will end up costing your estate or your heirs unnecessary taxes.
Your will should be only one component of your comprehensive estate plan. Trusts can offer estate tax reduction. For instance, a “bypass” trust may allow you to provide for your spouse yet avoid estate tax on trust assets at the death of both spouses. Current federal estate tax law provides for a $2 million exemption, so anyone with $2 million-plus of assets should consider this strategy.
Besides your will and trusts, your estate plan should include powers of attorney in case you are unable to make personal decisions while you are still alive, life insurance trusts (to make their proceeds estate tax free- these will not be available if you are already diagnosed with cancer), health care proxies and end-of-life directives.
A health care proxy allows you to name someone who’ll make decisions about your medical treatment if you become unable to make those decisions. End-of-life directives indicate whether you want to be kept alive by medical life-support systems in case of a terminal illness.
Many people also make the error of drafting their own will. There are many “do-it-yourself” kits for writing your own but using them is not a good idea. You will save money by avoiding the legal fees of an attorney, but the risk is to great that there will be significant errors that will end up costing your family many times the amount of money you saved. Your will is one of the most important documents you’ll ever sign. An experienced attorney should draft such a crucial document so your heirs will avoid problems after your death.
You should be aware that not all of your assets are subject to your will. Certain predetermine items will not be subject to your will. An IRA will pass to a designated beneficiary, the person you name in IRA documents, no matter what it says in your will. The same is true for other retirement accounts, annuities, life insurance policies, transfer-on-death or payable-on-death accounts, and assets transferred into a trust.
In addition, property that is held jointly with right of survivorship will pass to the surviving co-owner or owners. Again, mention of such property in your will has no impact on the eventual distribution of the asset. However, these types of assets (items going to beneficiaries, jointly held property) will not be subject to the expense of probate. It is therefore very important that you periodically review all of your beneficiary designations to confirm the choices made are still what you wish to have happen.
Never name your estate as beneficiary of IRAs and other retirement accounts. This will make those assets subject to estate taxation, loosing the tax deferral they other wise provide.
Never leave an outdated will in place. Once you draft a will, you can’t just forget about it. Your personal situation may change — births, deaths, marriages, divorces, changes in financial status, etc., all can have an impact on your plans. The tax code also changes periodically, make sure that your will allows you to take full advantage of the code or doesn’t fall into a newly set trap. You must revisit your will and the other elements of your estate plan after each major change in your personal circumstances and after each change in estate tax law. Even without such events, take a look at your will every few years to make sure that it still reflects your current wishes.
Don’t hide your will. Hiding your will so that someone does not snoop can mean that the will stays hidden forever. Your will should be kept in a place that is both safe and accessible.
The best way to make your will both private and accessible is to leave it with the friend or relative you trust the most. If there’s no one you trust, name an institutional executor such as a trust company and let this firm hold your will. My personal attorney holds my will and my wife’s will.
Commonly, people put funeral and burial instructions in their will. However, wills are often not read immediately and so your wishes may not be carried out. Use a separate document to spell out your final wishes and tell your executor, spouse, attorney and children where this letter may be found.
Those who leave behind a large estate should let their executor know that when hiring an attorney to probate your estate they should negotiate the fees. Attorneys will point to their bar associations directives on fees and try to structure a fee arrangement based on a percentage of the value of the estate. This is fine with a small or moderate estate, but in the case of a multi million dollar estate the fees are not reflective of the actual work that is performed by the attorney. There are no laws dictating the fee structure, even if an attorney claims that these rules exist. If you come up against that argument it is time to continue your search for an new attorney.
Joel T Nowak MA, MSW