Preparing a will seems to be the hardest task for people to check off the list of important things to do. Many people don’t think they have enough assets, or they can’t face their mortality, or they think it’s too complicated.
By Marie Bradby
The Importance of Preparing a Will
Aretha Franklin, Prince, and other famous people have died without prepared wills. Their estates will be tied up in the state courts for years and will cost a lot of money in taxes and fees, and it will be confusing to unravel who the deceased wanted to have their assets. Here’s the thing, without a will — your small estate will, too.
“Most people are surprised to learn that if someone dies without a will and they have children, the assets will go to their children and not to their spouse,” says Eileen Walsh, an elder law attorney and owner/partner of Elder Law of Louisville. “Kentucky determines the order of persons who will inherit from you if you do not sign a will,” Eileen says. “Kentucky statute lists the people who will inherit in the following order: children, parents of the deceased, siblings, and then the spouse. However, a spouse is entitled to a statutory share and can seek the right to half of it. ”
Preparing a will has nothing to do with the value of your assets, Eileen emphasizes. “It’s important to sign a will so you decide who will inherit from you,” she says. “Otherwise, the state will determine it for you.”
Write a Will, or the Government will Write One For You
“If someone owns joint property, the deed will say the surviving spouse will automatically become the owner of the house,” says Eileen Walsh, an elder law attorney and owner/partner of Elder Law of Louisville. “So it’s important to know how assets (bank accounts, cars, boats, etc.) are owned and titled.” But if not held jointly, those assets don’t automatically go to the surviving spouse.
“For the majority of people, not having a will can be dangerous to their families,” says Lee Cave, an estate planning attorney. “I tell people: ‘Everyone has an estate plan.’ They say, ‘No, I don’t. I haven’t even been to a lawyer.’ And I say, ‘The state has one for you. It’s the government default plan.’
“And the government plan is not good for most people,” he says. “Your estate probably won’t go to the people you want it to. You need to write your own plan to get it to the people you want,” Lee says.
Wills and Beneficiary Designations
“Whether there is a will or not, if you leave less than half of your estate to your spouse, the surviving spouse can go to the judge and say I want my marital half,” says Lee Cave, an estate planning attorney.
But, “if you die without a will and your spouse ends up with half and the children get half, that’s still probably not the way you want it. You meant for your spouse to get it all. She and the children may need it to live on. If the children are minors, the money is locked up until they are 18. It can’t even be used to raise them.”
Bypassing a will with beneficiary designations can help.
“There is a big exception to all of this,” Lee says. “Wills don’t control everything. A lot of people die and their wills are irrelevant because they have beneficiary designations on their accounts. It takes the place of your will.
“A will will not control checking accounts, savings, retirement, and other accounts with beneficiary designations.”
Keep Track of Your Accounts, or Hire Someone to do it for You
“In my seminars, one of the first stories I tell is about a man with a will who left everything to his two kids equally. The wife died first. He had put his children as beneficiaries on all his savings. But he lost track of who got what. He had his daughter designated on some and son on others and didn’t keep them equal. His family fell apart,” says Lee Cave, an estate planning attorney.
“That happens all the time. As we get older, it’s harder to keep track of paperwork. If you use beneficiaries to handle your estate, they have to be up-to-date and say what you want them to say. When working with a client, we go over them so they don’t mess up their estate plan unintentionally.
“Most clients don’t even know if they have a beneficiary or aren’t entirely sure who’s listed as the beneficiary,” Lee says. “I had a married man who was divorced three different times. He had two kids. He had a life insurance policy that had his first wife as the beneficiary.” The surviving spouse didn’t receive the insurance.
“You can set secondary or contingent beneficiaries,” Lee explains. “You can say, ‘I want my children, or if one of them dies, their children to inherit.’ Or you can say, ‘My primary beneficiary is my spouse; my secondary are my two children equally.’ ”
Beneficiary Designations Trump a Written Will
The more common problem is, “Mom wants to make it easy on the family when she dies. She’s got two daughters. She puts one daughter on her bank account as a co-owner to help her out with bills. She doesn’t mean to disinherit the other children, and thinks: ‘When I die, this daughter can divide it.’
Most people think the will trumps everything. But, a beneficiary designation (like bank accounts) trumps the will,” says Lee Cave, an estate planning attorney. “The daughter is not required to share the money.” As a co-owner or beneficiary, the daughter would inherit it all.
“You need a will, but you can make it easier on your family by making beneficiary designations. If it’s a cash account like at a bank, it’s Pay on Death. For an IRA, it’s Transfer on Death. They are considered by lawyers as a will substitute,” he says.
Extra tidbit: How longterm care insurance can help you keep some money in your pocket.