Many of my clients will say to me, “I just need a simple will”. According to Katya Sverdlow, a legal blogger, ninety percent (90%) of the people who say this are wrong. If she is right, it is a dangerous thing to think it may simple when it is not.
I don’t mean dangerous, as in some sudden catastrophe, but it is dangerous to your intentions that your estate be handled the way you want it to be. it can be “catastrophic” if your estate is more of a curse to your loved ones than a blessing.
I am not sure about the percentage (90%), but I know what she is saying. Many people don’t appreciate the number of moving parts or the complexity of thinking through them and fitting them into a cohesive whole that makes sense out of all those parts in away that accomplishes all of the goals to be achieved without creating other problems that haven’t even been considered.
One question to ask is, “What do you mean by a “simple will”? Most people couldn’t answer that, and that is the problem. I believe the blogger’s point is that most people don’t really know what they need, and they don’t even know the questions they should be asking to make that determination.
I don’t mean to offend anyone. It’s just that people don’t know a lot about about estate planning. it isn’t something we learn in high school, college or even in graduate school. Most people don’t know what they don’t know without spending time with an attorney or a certified estate planner to guide them through the process.
While a “simple will” may ultimately accomplish your goals, the thought process to arrive at that conclusion isn’t usually as simple as most people suppose. Most people don’t know all the questions they should be asking themselves, and most people don’t think about all the things they should be considering to do good estate planning.
This is true, to some extent, of most lawyers who don’t focus on estate planning. They may have only a basic understanding of estate planning unless they focus their practices on estate planning. Estate planning isn’t typically a required course in law school. The lawyer who relies on that one course, though, without ongoing, continuing legal education in the area of estate planning, may be committing malpractice and not even know it.
Changes in the law and the nuances are legion. After 30 years of estate planning, I still run into situations regularly that require research and analysis for me to address. As a long-time estate planner, though, I know where the issues are and where to go to determine how to address them.
The legal issues are not always so complex, but most people don’t know what the legal issues are. Unique fact circumstance on top of it, especially with blended families, can greatly complicate estate planning.
Some basic questions to ask include:
Do you have a significant other? Are you married? Do you have children? Are the children both of yours? Or are there children from a previous relationship? Will your spouse remarry if you pass away? Will you remarry if your spouse passes away.
Do you have children? Are they minors? Who will be their guardians if you are gone? Who will manage your estate for them? Are they close in age or spread apart? Will they all go to college? Will all of them go to college? At what age should they have unfettered access to your estate?
Are your children married? Will they get married? Do they have children? Will they have children? Do they have any individual concerns, like drug or alcohol use, job issues, lack of appreciation for the value of money, mental health or physical needs, special needs? Are they easily influenced by others?
If you don’t have children, where do you want your estate to go? Who should get it? Who should handle the administration and management of it?
Do any of your beneficiaries have issues that may become problematic if they receive money from you outright? Are there tensions in your family? Do you anticipate anyone causing a problem? Do you plan to cut out any family members? Might one of them contest your will?
What happens if one of your children or other beneficiaries dies before you do? Are you ok with your estate going directly to beneficiaries? What if they are minors? Doesn’t it make sense for them to unfettered access to your estate when they turn 18? When should they receive it? Who will manage it for them in the meantime? How should it be managed?
These are questions relate only to your relationships. These are only some of the basic consideration. Each person and/or couple has their own unique set of answers to these basic questions. Each answer raises additional considerations that need to be discussed.
The assets you own and how you own also raise issues for consideration. Questions relating to assets include the following:
Do you own your house outright? Do you own all you assets individually or jointly? If you own assets jointly, do you own them in joint tenancy, tenancy in common or tenancy by the entirety? Do you own other real estate?
Do you have assets with beneficiaries designations? Have you thought about how they should be handled in light of a will? Have you thought through all the ramifications of designating beneficiaries or leaving those assets to be directed by your will? Have you named successors? Are any of them minors?
Do you have assets that can be designated to a payable on death designee? Have you thought about how payable on death designations should be handled in light of a will? Have you thought through all the ramifications of naming payable on death designees or leaving those assets to be directed by your will? Are any of them minors?
If you have set up your estate for most assets to pass by beneficiary or payable on death designations, who will handle the administration of your estate? Where will the money come from to pay your final obligations? By what authority will they act?
Then there are personal care and property management issues that prompt questions like these:
If you become incapacitated and unable to make decisions for yourself or manage your own affairs, what will happen to you? Who will be your guardian? Who will make decisions for you? By what authority? What will happen to your assets? If you become incapacitated, who will make medical and personal decisions for you? How will they be guided in making those decisions.
If you have added someone to your bank account so they can pay bills for you, did you know that you have gifted your account to that person? Did you know that your account is now subject to their creditors? Have you thought about how your account may become tangled up in their divorce?
These are just some of the questions that should be asked when doing estate planning. Every answer will require discussion. Every answer leads to other questions. Answers to some questions may require consideration of other questions.
Estate planning isn’t rocket science, but it’s rarely as simple as people might suppose. Every person and family has unique circumstances that require careful consideration of each individual factor in relation to the whole. It’s like putting a puzzle together with interchangeable pieces. Those puzzle pieces can fit together in different ways. Moving one piece often requires consideration of moving other pieces so the puzzle fits together in a way that makes sense for you and will work best for your situation.
If you don’t think it through all the considerations and ramifications of your decisions, you can leave a mess for your loved ones that will make life difficult for them. Poor estate planning that doesn’t factor in the various issues can cause more heartache then blessing.
Katya Sverdlow poses a final question in her recent video blog that prompts my writing today: “Are you going to leave a simple will? Or thoughtful one?”
Her questions are spot on. If you want to leave a well thought-out estate to your loved ones that is more of blessing then curse, don’t try to hack your way through the estate planning jungle without guidance in using the tools the law creates for you.
For estate planning in New York State or New Jersey, you might want to contact Katya Sverdlow. For estate planning in Illinois, follow the Contact Us link below to get more information. We can send you an Estate Planning Worksheet. We can set up a Zoom conference or in-person meeting with an attorney who can get you started on the road to a well thought-out estate plan that can have confidence in.
To receive a worksheet and set up a meeting to prepare your estate planning – contact us!
For more articles on estate planning topics, see the Fox Valley Estate Planning Blog. For articles related to family law matters, visit Drendel & Jansons Family Law Blog. For additional articles on various topics of law, visit the general Drendel & Jansons Law Group Blog. For various legal resources, visit the Drendel & Jansons Resource Page.
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