You don’t really write your will, and most people shouldn’t try. But you can be sure the will is done correctly. In this visit we discuss how to shepherd your will through the estate planning process.
It doesn’t take much to tarnish a gem of an estate plan, and with it your legacy. A misplaced word, missing clause, or miscommunication between lawyer and client can send your ordered plan spinning into chaos. You can avoid such a fate. Follow these guidelines and you’ll be well on the way to establishing the perfect will as the foundation for your estate plan.
Observe your lawyer. Before beginning, a good estate planner wants to know about everything you own, have an interest in, and owe. A good estate planner also will ask about your family, charitable interests, and other personal concerns and pursuits. Finally, he’ll want to know your goals and ambitions for all of these things. Only then, and after some research and thought, should the planner show you different ways of trying to meet those goals, explain the trade offs in each method, and let you choose which route to take.
If the lawyer doesn’t ask for details or discuss these items with you, it’s a good idea to talk to another lawyer or two. Unless your estate is very simple, be wary of a lawyer who decides quickly what your will should say and how your estate plan should be structured.
Write in your own words. Lawyers and clients don’t always speak the same language. Too often, clients aren’t willing to make their lawyers explain enough and be sure they’re thinking the same. The result can be unintended consequences in the will.
You can avoid this fate by writing in your own words what you want to accomplish and, if you already have a plan, what you think the estate plan accomplishes. When you’re revising a plan or have given the plan a lot of thought, it’s a good idea to write before you talk to the lawyer. Bring a copy to your meeting or send it in advance. Otherwise, you might want to wait until the first meeting makes your thoughts flow.
Then, as you and the lawyer develop a plan, update your statement to include any changes. Show the revisions to your lawyer, so your goals and expectations are clear. This method reduces the room for error, and you should find out quickly if you and the lawyer miscommunicate in your discussions.
Consider a second opinion. You do it with almost every significant thing in your life, and probably with some things that aren’t very important. Spend a little extra money to have another estate planner review the documents (including your statement), talk with you, and give a second opinion on the will and any other estate plan documents.
Estate planning is fairly complicated, and gets more complicated each year. A small mistake or oversight can greatly change your estate plan. Except for very simple estates, a second opinion is worth the expense.
Know your children. Naming the oldest adult child as executor of an estate is very common and often works fine. It is a big problem, however, when the children have a history of animosity, there is some rivalry, or the oldest child doesn’t have the capacity. It is not unusual for children who were able to behave civilly while their parents were alive to go to war after a parent’s death, especially if the executor isn’t comfortable with the job. The results are an irreconcilable family and money wasted on attorneys’ fees. Consider naming someone outside the family as executor.
Limit specific bequests. A specific bequest gives certain property or a specific amount of money to a person. Specific bequests are appropriate for valuable or unique items. But putting too many specific bequests in your will can cause problems. For one thing, you have to update your will every time you sell, give away or otherwise dispose of one of the items. What happens if an item can’t be located after your death? What happens to items that somehow didn’t get named in your will?
More importantly, the value of your estate is likely to change. When one or more people are given specific property or amounts of money, their shares of the estate could be more or less than you intended when the value of the estate changes.
It is better to limit specific bequests to valuable items and those you know have meaning to certain individuals. Then, have all the other items disposed in the “residuary clause.” This is the clause that says “all the remainder or residue or my estate goes to…” Normally this clause gives property to the spouse or divides it among the children. When giving a specific amount of money, you might want to use a formula, such as, ?my brother, Tom, receives $10,000 or 1% of my estate, whichever is less.?
Don’t divide your heirs. Most wills provide the children will equally divide most of the estate, known as the residuary estate. The trick is choosing a method for dividing the specific property that works best for your heirs. Choose the wrong method, and you’ll divide the loved ones along with your property. We’ve covered ways to do this in past visits, most recently in January 2013. These past visits are in the Archive on the members’ web site.
If the children can work together, simply instruct them to agree on a division so that each child gets roughly an equal share. The other extreme when the children can’t cooperate is to name a non-family member as executor and let the executor decide who gets what. Another easy solution is to order the executor to sell everything and divide the cash proceeds equally.
While they are alive, some people tell their children to attach their names to any personal items they want to inherit. Others set up a lottery in their wills. There are several ways to set up lotteries.
Keep up with the times. Once a plan is in place, it needs to be revised for changes in your life, the tax laws, and other events.
Your estate planner needs to know of any changes in your family and your wealth. You need to meet with your estate planner when a child or grandchild is born, there is a marriage or divorce, or someone dies. Changes might need to be made if you move to another state. Also check with your estate planner when the amount of your wealth changes or when you consider selling a significant asset.
Establish your domicile. States with high estate or inheritance taxes sometimes use aggressive estate tax enforcement to fill their coffers. A state will tax the estate of anyone who was ?domiciled? there at the time of death. Domicile is a technical legal term. In most states it means the place in which you intend to live indefinitely.
That creates problems for those who split the year between two or more states and for people who largely moved to a new state but didn’t sever all their ties with the original state of domicile. In some cases, two (or more) states each will claim the deceased was domiciled within its borders, and each will assess full taxes on the estate.
Estate taxes aren’t the only issue. The terms of your will might need to be different, depending on which state governs it.
Decide which state you want to be your domicile and legally establish that domicile. Document the steps you took. States generally look at voter registration, vehicle registration, and driver’s license addresses. They also will look at where you spend over half the year and a host of other factors. There’s a checklist on the members’ web site under the “Extras” tab.
Unfortunately, a few states essentially require you to sever all ties. Some will claim you were domiciled there if you retain a property such as your old residence, even if you rent it to others or rarely visit. If you split time between two or more states, be sure to establish a domicile and document it.
When you take the time to craft the perfect will, the administration of your estate will go smoothly and won’t adversely affect how loved ones remember you. But a mistake or poor planning could result in bad blood among your survivors or bad memories of you.
RW April 2013.