WILLS – What Can Go Wrong
If having your will prepared is inching toward the top of your to-do list, the following are some things you should think about as you get organized to do your estate planning. The point of a will is to define who among your family and friends will receive your assets. Your assets include your household possessions, your home and your investments and savings. The simpler your family relations and the simpler your assets—the simpler your will. The more complicated your family or assets—the more challenging your will is to prepare. The most straightforward will leaves everything to your spouse and if your spouse does not survive you, it leaves everything to your children equally. But we all know life is often messy and many of us have a second or third marriage, children we are not speaking to or who have problems, a son-in-law or daughter-in-law we do not trust or grandchildren who are on drugs, etc. The more complicated your relationships are, the more thought that has to go into preparing your will and the more help a good estate planning attorney can be in proposing possible solutions for sticky family situations. There are two big stumbling blocks I see clients have as I am helping them think through their goals. The first is they want to leave specific assets to specific people. The second is trying to figure out what happens if one of their heirs dies out of the “proper” order.
Specific Assets to Specific People
It is common to have a client say, “I want to leave my home to one child and my savings to my other child.” This plan will work fine if the client will do one little thing—die as soon as they sign the will – so that nothing has changed when the will needs to be implemented. But as we all know, things do change over time. Thirty years after you sign your will, you may have sold your home and moved into a retirement center. The problem is you may forget to change your will and there is no home to go to your first child. The much better solution is to leave your estate in percentages so that as assets change, the will is still fair to your family. If you have family heirlooms that you want to go to specific people, Washington law helps make that a simple process. In your will, you just have to say that you will make a list, separate from the will, that you will sign and date. Then you can change your list, as often as you wish, about which child or grandchild gets certain jewelry, antiques, etc., by signing and dating a new list.
Heirs Dying Out of Order
There is no greater tragedy than a child dying before his parents. But, sadly, we know it happens. I think one of the most challenging parts of will drafting is thinking through, “If this heir dies before me, who do I want to receive his or her share”? If the share goes to your heir’s issue, that is easy to draft for. But if the share goes to his spouse (or someone else), then you have to provide who receives the share if your second choice also dies before you do. You can see that even if you only have two or three heirs, the possible combinations for order of death can multiply. Then the challenge is making sure you have covered all possible orders of death. Of course, if an heir dies unexpectedly before you do, you can always make a new will. But I find that often people forget to do so. Therefore, it is best to try to provide for it in your original will.
Another thing many people do not realize is that you can include a trust in your will that activates on your death. It is important for you to think through whether any of your heirs have a problem that makes giving them their inheritance outright a bad idea. You would not want to give a minor heir an inheritance outright. Usually, you would not want an inheritance to go outright to a child who is disabled, has drug, alcohol, gambling issues or is a spendthrift. Adding a trust to your will for any children with these problems is often a good plan.
In your will you need to name the person who will be in charge of your affairs after your death. If you are choosing among your children, look for the child who will get along well with the rest of your children and in whom your other children have confidence. If choosing one child over another is awkward, you may provide that two children will serve as co‑personal representatives in your will.
The above issues are some of the major ones you will need to think about as you get ready to do your estate planning and have your will prepared. Sorting through them can be charged with a lot of emotion but working through these issues carefully will make things easier for your family later.
Elizabeth A. Perry, a member of the National Academy of Elder Law Attorneys, has been helping Clark County residents with their estate planning needs for over 20 years. Her practice emphasizes wills, trusts, probate and Medicaid planning. You are invited to call her to schedule an appointment or sign up for a class at (360) 816-2485.
©Liz Perry 2015
(The above should not be construed as specific legal advice and is intended for general information purposes only)