Many folks improperly equate “estate planning” with “writing out a will.” Undoubtedly a last will and testament can help with some planning goals, but is it really enough of a plan to protect your family and your future?
A will lets you direct how your assets are distributed after you pass away. Without a will, your assets would simply be distributed according to the laws of your state, known as the “laws of intestate succession.” The process of intestate succession will completely ignore your wishes because what you “would have wanted” is simply irrelevant to the state without a formal will in place. With that being said, in most nuclear family dynamics, the laws of intestate succession generally mirror what most people typically do in their wills: everything to a spouse, and if the spouse is predeceased, everything to the children in equal shares. In many cases, having a will and not having a will ends up with the same result, except that a will lets you name an executor.
Even if your wishes regarding your distribution don’t differ from intestate succession, a will is critical when you have minor children. In your will, you can name a trusted person to serve as a guardian, that is, someone 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 that may appoint a person you may not have selected yourself.
So, yes, a will can be an important document to ensure your wishes are respected after you’ve passed away. But it is important to also consider the limitations of a will.
Limitation #1: No planning for incapacity.
Your will does not direct who should manage your affairs should you become incapacitated. Working with an experienced estate planner to establish a durable power of attorney for finances and healthcare will ensure that you retain some control over what is done on your behalf if you become incapacitated, ensuring you have designated the right persons and provided them with sufficient authority and instructions on how to make decisions about your assets, personal affairs, or medical care when you are unable. If you do not have either Power of Attorney in place, your family may have no choice but to go to probate court to appoint a court-supervised Guardian. With that supervision comes court time (and the stress accompanying it), and often legal fees that could have been avoided.
As with not having a will, leaving the decision to the court to decide could lead to the appointment of someone you did not intend… someone who would then have the power to take actions they believe are in your best interest, regardless of your personal preferences.
What about end of life treatment? Do you want to be artificially kept alive if you are permanently unconscious? Can someone else authorize “pulling the plug” or sign a “Do Not Resuscitate” on your behalf? If not, what are the financial and emotional costs to that status quo?
Limitation #2: Wills don’t cover assets with beneficiary designations.
Many financial accounts require a beneficiary designation to determine how the assets will be distributed. Ownership of assets such as life insurance, annuities, qualified retirement accounts (e.g. IRAs and 401(k)s), investment accounts, and even bank accounts or real estate, all allow for beneficiary designations to dictate how the asset is to be distributed after the owner dies. In fact, many IRS rulings and court cases have determined that an owner’s statements and intent in a will are irrelevant if they contradict what was written on the beneficiary designation form. This is why it’s important to also review your beneficiary designations periodically to ensure they reflect your current goals and circumstances, and not what existed when you opened the IRA a couple decades ago.
Limitation #3: Wills guarantee probate.
We have yet to meet a client who wants their spouse or their kids to go to court on their behalf. And yet, many people are under the impression that having a will helps avoid probate. In fact, the exact opposite is true. If a will is disposing of an asset, the disposition is happening in court. It is for this reason that many of our clients utilize a trust as their primary planning document, as opposed to a will. A revocable living trust, for example, 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, unnecessary taxes, divorce, and even their own poor decisions if they are not yet mature enough to handle an inheritance.
In short, while a will can help you accomplish important goals, additional estate planning tools and strategies are necessary to protect you and your loved ones during incapacity and after you pass away. You have to be willing to think through some difficult scenarios in order to ensure you’ve truly got a comprehensive estate plan, one that makes things clear and simpler for your loved ones.
If you want to discuss your current will with an experienced estate planner, or talk about where you may be able to shore up or improve your estate plan, all you have to do is reach out. Let’s Talk!