13 Jan At a Minimum Get Your Will Established
It’s a New Year and I’m sure your passing is not one of your resolutions, however, it’s a good time to review your estate and get one of your essential life administration duties organized, ensuring you have an up-to-date will. Your will’s basic, but crucial, function is to provide instructions for how you wish your personal property to be disposed after your death. Other important considerations to be included are naming an executor to administer your estate, naming guardians for minor children and instructions on how any outstanding debts and taxes should be paid.
You as the creator of the will are the testator. When you die with a will in existence you are passing testate. Without a will you pass intestate, meaning your property will be disposed according to your state’s laws, that maybe completely at odds with your wishes hence why a will is the essential first step in your estate planning no matter how large you expect the value of your personal property to be. You can change your will at any time by codicil or completely re-write as many times as you wish.
Property you leave under a will is a bequest. A specific bequest typically relates to a tangible property such as a house, car, antique, jewelry etc. Note, under most states, if upon death the property no longer exists or is not owned in your name the beneficiary will receive nothing. Also keep your will updated to ensure the beneficiaries are still alive. A general bequest provides for a certain value of property to be disposed. The bequest is not necessarily tied to any specific tangible property. The executor is charged with determining the appropriate source of the bequest. A residual bequest disposes of the assets remaining after all other bequests have been satisfied. A residual clause should be included to ensure that your estate is cleared of all property at the end of probate process.
You also need to determine the distribution scheme. Provisions need to be made for when an heir predeceases you. For example, what happens if you survive one of your three children who has two of their own children? Assets left per capita to your children and grandchildren will be distributed equally, five ways. Per stirpes is the alternate option where assets would be distributed one third to each surviving child and one third split between the grandchildren of the deceased child. Per stirpes is often the preferred scheme where there may be or is expected to be grandchildren from each child.
Only property that is held in your name at time of death shall pass in accordance with your will. Joint property will be subject to rights of survivorship. Retirement or life insurance interests shall pass by beneficiary designation. Related: Note to Self: Double-Check your IRA Beneficiary(s) (https://cjlawrence.com/blog/note-self-double-check-ira-beneficiarys/).
No state allows you to disinherit your spouse but all states but Louisiana permit you to disinherit a child. If you really want to disinherit a child you must specifically state this in your will not just omit them. Most states provide that if a spouse or child is not named in your will such person is determined to be a pretermitted heir, entitled to take share of the estate that would otherwise be determined under the state’s intestacy laws.
There are many other clauses, provisions and considerations you can introduce but creating a straightforward up-to-date will is the first step to ensure that your wishes are fulfilled as tax efficiently as possible. You will need an attorney to draw up your will but you should furnish your financial planner with a copy to ensure assets are managed and administered appropriately. Planners can offer guidance to help you craft your wishes and determine the most efficient (tax/expenses) manner to organize your estate.
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