Most estate planning conversations I have seem to start the same way. It can be a meeting, a phone call, or a casual conversation with a friend. That person wants me to know that the only need is the most simple of wills. And I get where people are coming from. To start, most individuals feel their assets are straightforward. The idea is also easy – everything to a loved one. Why make anything more complicated than it needs to be? And who wants to pay for that?
It may be that a simple will covers everything. There is no doubt your estate planning attorney will be happy to draft that for you. The truth is that there are endless ways to draft even simple wills. Whatever the result, it is important to know why the estate plan fits. It’s like showing your work when doing algebra equations in school. It is preferable to see how you got there than to hope to stumble on the answer.
This article mentions a few items worth discussing with your estate planning lawyer.
Most people know that a last will and testament says where you want everything to go. It might be to a spouse, child, loved one, or some combination. If somebody predeceases you, the will addresses that situation. It also nominates a personal representative of your estate, guardians, and trustees. I have seen probate situations where those designations can be just as important. The will also speaks to more specific gifts of cash or assets to people or charity. It can also list personal property and household items that go varying places.
Most wills include some sort of trust. A gift to somebody who predeceases you might result in that person’s minor child taking the gift. The minor cannot take the gift outright so it is held in trust for them. If a gift is directly to a minor, young adult, or special needs individual, there might be a more obvious trust situation. Trusts also come up in situations where estate tax and/or probate avoidance are important. Those scenarios frequently involve a trust in a separate document.
Some estate planning occurs outside of a will or trust. It turns on how assets are titled. This might be where real estate is jointly held with a right of survivorship. It could be something simple like a bank account with joint owners. Or something more transparent like an insurance policy with a beneficiary designation. The point is to identify these sorts of assets in a meeting with the wills & trusts attorney. That way you can be sure they are structured properly.
Powers of Attorney
Estate planning is also about incapacity. How will funds be accessed for personal or business needs? Your last will and testament is only relevant when you are gone. It is not uncommon for incapacity to last weeks, months, or years before a will is even considered. Without planning, the guardianship and conservatorship process can be costly and time consuming. With a General Durable Power of Attorney, that procedure might be less critical. A Healthcare Power of Attorney gives an agent some additional decision making power.
The terms simple will and complex will are subjective. They probably mean something different to each person you ask. The more important thing to understand is how your estate plan operates. Your will, trust & estate lawyer can craft suggestions after a thorough meeting.