A Will is a Key Component of Any Estate Plan, But It’s Not Enough.
Our Elder Advisors Law team has observed that when most people think of estate planning, writing out their wills usually comes to mind. While a will can help you accomplish several important planning goals, it’s certainly not a complete plan to protect your future.
Many people know that a will lets you control how your assets are distributed after you pass away. And, without a will, your assets would simply be distributed in an action carried out by the state. Known as intestate succession, the state acts in an objective and simply procedural manner because your assets are required to be distributed. The intestate succession process will completely ignore your wishes because what you “would have wanted” is simply irrelevant to the state without a formal will.
A will is also critical when you have minor children. The terms of your will can give you control over how your minor children are raised should you and your spouse pass away. In your will, you can name a trusted person to serve as a guardian who will raise and care for your children when you cannot. However, without a will, a court decides who will raise your children; a decision may appoint a person you would never have selected yourself.
In sum, yes, a will is an important document to create so you can rest assured your wishes will be respected after you’ve passed away. Yet, it’s important to consider the limitations of a will as well. For instance, your will does not allow you to manage your affairs should you become incapacitated.
Working with an experienced estate planning attorney to establish a durable power of attorney and advanced medical directive will ensure that you retain some control over what is done on your behalf if you become incapacitated. Each of these documents empowers one or more individuals to make decisions about your assets or medical care when you are unable. If you do not have either document in place, a court will decide who to appoint to fill these roles for you. Again, leaving the decision open for the court to decide could lead to the appointment of someone you would not have chosen for yourself, someone who would then have the power to take actions they believe are in your best interest regardless of your personal preferences.
Further, many financial accounts require a beneficiary designation instead of a will to determine how the assets will be distributed. Ownership of assets such as life insurance, annuities, retirement accounts like IRAs and 401(k)s, and jointly-owned property all look to the beneficiary designation form for guidance on how the asset is to be distributed after the owner’s passing. In fact, many IRS rulings and court cases have concluded that the owner’s statements and intent in his or her will do not matter if they contradict what was written on the beneficiary designation form. This is why it’s important also to review your beneficiary designations periodically to ensure they reflect your wishes now, and not what you wanted when, for example, you opened the IRA 20 years ago.
A trust is another estate planning tool families can utilize to provide greater flexibility in how their future is managed. For example, a revocable living trust allows your estate to avoid probate entirely—and the public scrutiny that accompanies it. Trusts can also protect your assets against creditors and other threats while protecting your heirs’ inheritances against creditors, predators, remarriage, and even their own poor decisions if they are not yet mature enough to handle an inheritance on their own.
In short, while a will can help you accomplish important goals, additional estate planning tools and strategies are available to protect you and your loved ones both after you pass away and in the event of tragedy while you are still alive. Our experienced Elder Advisors Law team can help you determine the best tools and strategy for you.
