Last Will & Testament
To the extent that you have financial resources available, estate planning secures your spouse’s and children's financial well being after your death. In case you've remarried or divorced, planning your estate also secures your new spouse's future seperate from claims of an earlier spouse aside from your own first wife or husband. A well-planned estate also addresses questions about the share of ex-spouses with your estate and whether the validity of a prenuptial agreement takes precedence over your will . During the planning process, you and your estate lawyers will discuss the terms and conditions in distributing your assets and paying for your debts.
As a carryover from our Latin predecessors, a man making a will is often referred to as a “testator” and a woman making a will is a “testatrix.” And, one who dies without having made a valid will is referred to as having died “intestate.” It must be noted that a will cannot cover absolutely everything in which a person has a legal interest. For instance, a will has no effect on beneficiary designations made by the testator in life insurance policies (unless the designated beneficiary is the insured’s estate), Individual Retirement Accounts, and 401(k) plans. Similarly, as a matter of contract law, in cases where a bank or brokerage account bears the designation joint with right of survivorship or “Pay on Death,” the institution will pay the account to the survivor of the joint owner without regard to the preferences shown in the will of the deceased owner. Finally, the title to real estate titled in the names of two persons joint with right of survivorship will go to the survivor by operation of law and without regard to any will.
In drawing up your will, which takes effect upon your death, you need lawyers and financial advisers to help you assess the totality of your assets and liabilities. However, decisions as to which assets go to which beneficiary depend solely on you. As we say in this office, you must be guided by your heart and your mind - we can’t make those decisions for you. Your lawyers will be here to advise you concerning your wishes, and can assist you in reducing to writing your preferences respecting the portion of your estate that you intend various beneficiaries to have, and how you can best protect beneficiaries who are still minors and lack the legal right to control their inheritance.
One way of determining which of your non-investment properties goes to which heir is to ask your children and your spouse which heirloom or valuable collection they expect to get as part of their inheritance, and make a handwritten or typewritten list to be attached to and made a part of your will. Your children and your spouse (current or otherwise) may seem to get along nicely right now, but soon after your death, disagreements and distrust could quickly arise between them. Be as detailed as possible in distributing the items and estimating their worth. Be careful in bequeathing family assets to third-party beneficiaries, such as charitable organizations or research institutions. These may be noble endeavors worthy of pursuing, but in the matter of planning a comfortable future for your heirs, only a small portion of your estate should be allocated to these types of beneficiaries. In preparing to draw up a will, we often ask our clients to consider the following:
Things to Ponder
|• Who you want to name as the primary executor.||• Who you want to name as a backup executor.|
|• Who you would want to name as a trustee if the beneficiaries of your estate are under 19.||• Who should serve as a backup trustee such as the Trust Department of a bank.|
|• Whether any specific child over whom you have custody but have not adopted is to be treated like natural children.||• Whether adopted children are to be treated like natural children.|
|• Who you want to get your personal property (e.g. china, silver furniture, cars, boats, golf clubs, etc.)||• Who you want to get your real property (e.g. house in which you are presently living, if owned by you)|
|• Who you want to get your vacation homes, vacant land, etc.||• Who you want to receive your vacant and undesignated grave sites, if any.|
|• Any specific bequest(e.g. a fixed sum of money) that you may wish to make to individuals or charitable institutions||• Who or what class of persons (e.g. your children) you would want to receive the rest of your estate|
|•Any special instructions about cremation, etc.|
Consideration of these topics will provide both you and your lawyer a head start in drafting a workable Last Will for you. We do ask our clients for a commitment to move from beginning to end in one month so none of us will forget what we are supposed to be doing. We will pledge to do our work in a timely manner so it will not hold up the process.