Once upon a time, a family member, when first visiting my getaway cottage on a holiday, asked me, “Who gets it when you die?” I’d like to be able to say this was a question from a naïve child, but, no, it was an adult, and not even as close as spouse, child, or parent. God willing, none of your relatives will be so bold in remarks to you. Rudeness aside, however, what’s the answer? Who gets it when you die? If you want to be in charge of the answer, you need a will. You don’t need it later. You need it now. No one likes to think of his or her own death. Many folks think, “If I make a will, I might die.” Well, with or without one, you will die, eventually, sooner or later. Again, you need a will. You need it now.
So, what’s required to make a will? First, competence. You need to be mentally competent to make a will. If you are reading this, odds are we can check off Requirement 1. Second, an appointment with an attorney of your choice. Don’t simply “pop in.” When you just “pop in,” you set both you and the lawyer up for a disadvantage. The attorney is not focused on you to the exclusion of other work, as she did not know you were coming, and did not come into the meeting with you in mind. Third, when you come for your appointment, bring any will you already have. This allows the attorney to review your prior plan and to evaluate any changes you want to make. Lastly, come to the appointment with at least some ideas of what you own (just in general, not a detailed inventory), what you would like to happen to the assets you own, who you would like to manage your affairs in the immediate aftermath of your death, and special considerations required for your family.
For your first appointment, your attorney won’t need a detailed itemization of all you own, but you should be prepared to describe, in basic terms, the addresses or locations of homes and lands you own, life insurance, valuables, and general information about bank or brokerage accounts. Other information may be needed later. Your attorney may ask whether your net worth, or even your and your spouse’s joint net worth, exceeds $11.2 million, which, for 2018 through 2025, is the current amount of an estate that can be left by one person with no estate taxes. (This is an increase from 2017’s limit of $5.49 million. For 2026, the exemption level will revert to $5 million, adjusted for inflation, unless Congress acts to change that.) Your attorney is not merely being nosy; she needs to know if specialty advice is needed from an estate tax attorney. If your estate does not exceed the exemption, you likely do not have an estate taxation issue. At Ness & Jett, LLC, we do not practice estate taxation law, but we can obtain consultation and collaboration from any specialists needed to assist us with your estate planning.
Assets of a deceased person are initially managed through an estate administration in the Probate Court. If the deceased person had a will, it is filed with the Court. (We are often asked whether wills are filed during the lifetime of the signer. They are not, as they are subject to change during life.) The person in charge of the estate is known as the Personal Representative. (This person was formerly called an Executor or Executrix if there was a will, or an Administrator or Administrix if the person died without a will. All of these are now known as Personal Representative.) The Personal Representative is the Probate Court’s contact for management of the estate. This person lists the property owned, receives and handles creditors’ claims, and, ultimately, distributes property to those named in the will, or, if there is no will, to the heirs established by law. When you meet with your attorney to make a will, you should come to the appointment ready to discuss the person who should assume this role, and, if at all possible, at least one alternate in the event the primary person named is unavailable to serve at the time of your death.
Minor Children or Adult Children with Special Needs
This is one of the toughest issues in making a will. If you die, leaving a minor child whose other parent is also deceased, who will raise the child to age eighteen? This person is known as a testamentary guardian. You should come to the attorney meeting ready to discuss this issue. You will need to give your attorney at least one name, and, if possible, an alternate, for this role.
Who will manage your child’s inheritance if you die while she is too young to manage it herself? This person will be a trustee. You will need a name and an alternate for this role, also. Do you want your child to have control of her money at age eighteen (something we generally do not advise) or older? Your attorney may have suggestions regarding the age of distribution of assets, or even a plan to distribute the assets to the child at different ages or life stages, to avoid the risks presented by a young adult who has not matured into good money management.
Some families are blessed with a person who would be great for raising the child and managing his money. In other families, there is a great candidate for guardian and a great candidate for trustee, and they are not the same person. This is okay. Your attorney can draft your will accordingly.
Be ready, also, to discuss any special needs of your child, even for an adult child, in case special trust language is needed in the will.
Families come in all shapes and sizes. Some are blended families, formed when other families are torn by divorce and death. If your family includes stepchildren or property issues arising from these situations, we are here to listen and assist you in forming a plan that takes these matters into consideration.
LET US HELP
The attorneys of Ness & Jett, LLC, are skilled in drafting wills, and are ready to help put your personal estate plan into writing. As I always say, “I hope you don’t need it any time soon.” But, better safe than sorry. Let’s get it done.