Ben Franklin said it just about right: “… in this world nothing is certain but death and taxes.” But there is strong evidence that many Americans may be ignoring the obvious.
Certainly, most people appreciate the inevitability of taxes — quick to pay attention to an outstanding tax bill or a way to minimize their annual tax obligation — but completely gloss over the certainty of their own deaths. The statistics are compelling: As many as 70 percent of all Americans haven’t given enough thought to their own mortality to write a simple will — a legal document that designates how they want their money and property to be distributed after their death. That may not come as a surprise to anyone, given the fact that contemplating death is culturally uncomfortable and even considered to be morbid. But it is a mistake, say the experts, and the downstream consequences of no estate planning can be costly and painful.
A better approach, say planning professionals, is to think about a will and other estate planning as a way to gain control over your life and even beyond your life. That’s a more palatable and even tempting motivation; most of us care about our legacy and want to know that what we have worked hard to accumulate throughout a lifetime will continue on in some productive way after we are gone. In fact, estate planning — specifically, making a will — is important for several basic reasons:
You want to decide who receives your assets when you die.
You want your children or grandchildren to receive their share of your assets when they are mature enough to handle the responsibility.
You want someone you know and trust — not a court-appointed administrator — to manage your financial affairs and the distribution of your assets.
You want to minimize court costs and taxes for your beneficiaries so they receive the maximum amount of your money.
You want to select the right guardian for your child.
You want your business to continue after your death.
Beyond all of that, making a will, or in some circumstances creating a trust, is an act of kindness and care for your family and friends so that anyone left behind when you die will not be forced to cope with financial confusion and instability — not to mention unnecessary expense — on top of their grief.
No will, no way
Leaving no will — and consequently no instructions about what to do with your finances, your assets and any minor children you may have — when you die is the problem you are flirting with when you ignore or put off planning for the future. If you die without a will, the state you live in determines exactly who receives your assets based on what are called its intestate succession rules. Those rules describe who is first in line for your assets, second in line and so on; if no relatives are found, your assets pass to the state. The only problem is you might have preferred to leave everything to specific family members, a favorite charity or someone completely unrelated to you. Without a will, you are out of luck; the state will scrupulously follow its own prescribed inheritance formulas. Even more distressing, if you have minor children and leave no will, you will have no say in who is appointed your children’s guardian; a court will appoint a guardian, based on its assessment of what is best for them. Obviously, state intestate laws are designed to try to do what is right for the average person, but the “one-size-fits-all” approach of state law is unlikely to line up perfectly with your own wishes.
And there is more bad news if you die without a will. Not only does your estate end up in probate — the legal process of administering your estate — but, depending on the circumstances, it could stay there for years while various potential heirs litigate to get their share of your estate. This undesirable situation is fodder for familial misunderstandings, squabbles and downright warfare, not to mention enormous expense — all avoidable by documenting your wishes in a will.
Think it through
Once you decide to manage the future from the present by creating a will, you will want to consider such questions as:
Do you want to bequeath your assets in equal or unequal shares?
How do you want to divide property that is not easily divisible, such as a house, your prized Porsche or your mother’s antique bed?
At what age should each heir inherit assets? (You may specify that assets be passed to heirs in certain amounts at certain ages.)
Will you leave out or disinherit any heirs?
How will you handle complicated family situations, such as children in blended families?
How will you provide for mentally or physically challenged heirs?
How will you treat a reckless child who spends with abandon?
How will you ensure that heirs use their share of your assets for purposes you approve of, such as paying for college or buying a house?
What happens if an heir predeceases you?
What special gifts do you want to give to specific people, charities, schools or other organizations?
Once you are clear about your goals and wishes, you are ready to commit them to paper. Although you can find plenty of print, software and online resources to help you do the job, writing your own will may not be the safest do-it-yourself project. You will probably need the services of a qualified attorney who specializes in trusts and estate planning. Ask for referrals from trusted friends, associates or family members, or contact the American Academy of Estate Planning Attorneys by phone at (800) 846-1555 or online at www.aaepa.com. Even if you decide to experiment with kits and books, ask an attorney to review your work. Otherwise you risk creating an invalid will that is no better than no will at all.
Author: Judy Alexander