Designing Your Will and Estate Plan
When completing a Will, it is imperative to craft or “design” it to meet your goals and keep your legacy intact. The following is a list of basic design elements to bring to an estate attorney when you are ready to complete or update your Will:
1. List your Goals. While common goals are to sustain and improve quality of life for loved ones left behind, specific goals can be to provide for such things as college expenses and ensure treasured heirlooms are left to those who will most appreciate them. If one of your goals is to insulate your assets from potential Nursing Home costs, you should have a separate discussion with your estate attorney about setting up an Irrevocable Medicaid Trust.
2. Name an Executor. An Executor or Executrix (female) is the person you appoint to carry out your final wishes. In most instances this requires, among other duties, the gathering of all financial records, keeping track of bills and claims, managing and/or working to sell real property and retaining an attorney to resolve the estate. For married couples, this person is usually the spouse. Other common choices are children, siblings and close friends.
Critical factors to examine in naming an Executor are trust, honesty, health and age (i.e., is there a good chance the person will outlive you), proximity and organizational and financial skills. Appointing a person who lives many miles away with difficulty traveling is not a practical choice. Likewise, no matter how well intentioned or loving a relative or friend may be, if they are bad money managers and disorganized, your estate could end up in chaos.
3. Name Alternate Executors. It is critical to name at least one person, preferably two, to act as a backup if only one Executor is named. You can also name two Executors to act together as well as two successive Executors. Having enough alternates will avoid both your family from having to seek court approval to have someone appointed and potential litigation if there is disagreement should the primary Executor die or fail to perform his/her role.
4. List Specific Bequests. If you have specific items or property you want to leave to special people upon your death, provide a detailed list to your attorney. Common bequests are: real property, jewelry (especially engagement, wedding and anniversary rings), collectibles, guns, tools, vehicles, charitable donations and specific bequests to grandchildren and step-(grand)children. You also need to specify what you want to happen to such items if the beneficiary is not living or refuses the bequest at the time of your death. For charities, specify whether you want the local branch or parent company to inherit and where you want the bequest to go if the charity no longer exists at the time of your death.
5. List your “Residuary Beneficiaries”. This legal term refers to who gets the remainder of your assets (i.e., “everything that’s left”) after any specific bequests of personal or real property are distributed. It is common for people to leave their spouses “everything else” and have their children split the remaining assets equally if the spouse is deceased. If the intention is to provide an unequal distribution, generally percentages should be used as opposed to specific dollar amounts. Example: Child A: 50%; Child B: 30%; Child C: 20%.
Further, an estate attorney should review any situation where the intention is for a spouse to waive an inheritance. New York State prevents a person from disinheriting a spouse and grants a spouse a minimum percentage of assets regardless of what a Will states unless the spouse specifically makes a valid waiver of inheritance.
6. Name a Trustee and/or Guardian of Minor or Disabled Children. A Trustee under your Will is the individual in charge of assets inherited by a minor (under 18) or disabled child. Many people choose a higher minimum age of inheritance like 25 or 30. In that event, the Trustee is tasked with managing assets until that person reaches the designated age. The Trustee can usually make discretionary distributions for such things as education, residential or medical care prior to reaching the age of inheritance, although an attorney should be consulted to ensure compliance with the trust terms. The Trustee and Executor are often the same person in a Will.
It is also critical to name the person(s) you would like to care for your minor or disabled child(ren) in the event a guardian becomes necessary upon your death. You should speak with the proposed guardians beforehand to make sure they are willing to assume such responsibility.
7. Name Remote Contingent Beneficiaries. The smaller the family, the more important it is to name people or entities that will inherit if all of your named beneficiaries (generally spouse and children/grandchildren) die before you. If you have no other beneficiaries listed, generally your estate will have to be probated as if you died without a Will. Common examples of remote contingent beneficiaries include charities, siblings and nieces and nephews.
8. Review and/or Update your Estate Documents Every 3 – 5 Years! There are many changes that take place within a 3 – 5 year time period. People are born, die, get married, divorce, move far away and relationships and health status change for better or worse. For these reasons, it becomes necessary to review, update and complete your estate documents with an estate attorney that will keep your best interests and goals in mind in an ever changing world.