Visit a dozen financial counselors, accountants and attorneys and you'll get a dozen different ideas on how to structure your personal financial program. But there is one thing they will all agree on: the need for a will.
If you don't direct the distribution of your estate before you die, the state will step in and do it for you. A cliche'? Sure -- but true nonetheless.
If you die without leaving behind a valid will, you are said to have died "intestate." In the absence of a will, every state has laws governing who gets what. These laws vary to some degree from state to state, but one thing is certain: The state-ordered distribution of your assets is very likely to be different from what you think it would be -- and probably different from what you would have wanted.
If you die intestate and leave a spouse and minor children, for example, as much as two-thirds of your estate may go to your children -- with a trustee appointed by the court -- and only one-third to your husband or wife. If there are no children, the surviving spouse may have to share your assets with your parents or brothers and sisters.
The cost of having a will prepared may be a major deterrent for many people. The amount depends on the complexity of your estate, but it may not be as expensive as you think. The fee for preparing a simple will -- one with no trust or tax-planning provisions -- may range from as low as $50 to perhaps $150.
There is a cost to not preparing a will, too -- often a far greater cost than the expense of a properly drawn will. The cost of doing nothing may be measured ultimately not just in dollars but also in major problems -- perhaps even anguish -- for your survivors.
Attempting to prepare a will yourself is not the way to save money. Copying a form from a book or buying a printed "fill-in-the-blanks" will is likely to create trouble for your family.
Despite the popularity of comments about the country being "overlawyered," this is one situation in which professional help is essential. An attorney qualified in the field of estates and trusts will draw a document that suits your unique financial and family circumstances.
In addition, there are a number of boilerplate phrases and paragraphs that may seem like legal gobbledygook to you but have developed over the years as a result of laws and court decisions that spell out rather precisely how a particular instruction must be worded.
Further, the attorney will ensure that the execution (signing) and witnessing of the will are done properly. There are specific formalities that must be observed to prevent the will from being declared invalid.
You can help by anticipating the attorney's needs and doing preliminary work at home. Some of the data the attorney will need is basic off-the-top-of-your-head stuff -- but write it down in advance anyway. Other information is more involved and may require thought and discussion with others. If you're married, you and your spouse should work on the project together.
When you have accumulated the information that might be pertinent, you're ready to talk with the attorney. But there are some rules about wills and estates that you should understand, so that you will not be taken by surprise if the attorney refers to them.
You may not dictate the disposition of life insurance proceeds under your will unless your estate is named in the policy as beneficiary. The insurance company is bound by law to deliver payment to the beneficiary named in the policy. (However, the insurance proceeds probably will be included in the estate for tax purposes.)
If you have been divorced and remarried but your first wife is still named as beneficiary, she will receive payment even if your will directs that your entire estate go to your present wife.
Similarly, you can't dispose of, by will, property that you own jointly (with right of survivorship) with another. Such property goes to the surviving owner (or owners) upon your death.
An elderly widow or widower sometimes will list a son or daughter as joint owner on a bank account but really intend that the money go to all the children in equal shares -- and even say so in the will.
Unfortunately, the law doesn't work that way. Instructions in a will cannot govern distribution of a jointly owned account. The son or daughter named as co-owner will get it all. Although he or she may be ready and willing to share the money with siblings, this desired distribution is not assured. And if each share is greater than $10,000, there may be a question of gift tax liability.
Because of the unlimited marital exclusion, you can leave the entire estate to your spouse without fear of any tax liability. However, when he or she dies, the amount above the $600,000 ceiling will be taxed as it passes to the eventual heirs (presumably your children).
You can reduce the size of your taxable estate by making gifts during your lifetime. Each year you may give up to $10,000 to each of as many different people as you like without gift tax consequences. If your spouse concurs in the gift, that ceiling goes to $20,000 per year per donee. And of course, after your death, your surviving spouse may continue this practice.
If you exceed the annual individual ceiling, however, you will have to add the total of excess gifts (made since 1976, when gift and estate taxes were consolidated) to your final estate before applying the $600,000 exclusion.
If you don't want to give away your excess assets, look into the advantages of a trust. If you put a part of your assets into an irrevocable trust while still alive, those assets will not be included in your estate at your death. Establishment of a trust in your will itself can accomplish a similar result.
A trust is not limited to assets in existence at the time of its establishment. For example, if the proceeds of your life insurance will push your estate over the ceiling, you can avoid that problem by transferring ownership of the policy to the irrevocable trust.
If you die within three years of establishing the trust, some or all of the assets may revert to your estate, but your will can be written to avoid this.
Another example of the importance of professional advice concerns possible use of a "self-proving" will (not available in all states). With the usual "witnessed" will, one or more of the witnesses may be called to appear in probate court to attest to the genuineness of their signatures and yours.
A self-proving will usually eliminates this requirement because the witnesses sign the will before a notary, who certifies the signatures at the time of the signing. Because there will be no need for testimony by the witnesses, you or your survivors don't have to keep track of their whereabouts.
After completion, the original (signed) will should be kept in a safe place, but where it will be accessible immediately after your death. Your attorney will hold it for you, or you can leave it with a bank or trust company you have named as executor.
You can store the will in a safe deposit box -- but your own may not be the best place. Some jurisdictions require that a box be sealed immediately upon the death of an owner or co-owner.
In some counties, you may file the will, for a small fee, with the clerk of the probate court or another court official. In addition to providing safe storage and ready accessibility, this assures secrecy of the contents, if that is a concern.
Tell your executor and other members of the family where the will has been placed. It's also a good idea to leave a memo describing its location -- along with other personal information such as funeral and burial desires -- with your current papers where it can't be missed after your death.
The job is not complete when the will is drawn and executed, witnessed and stored. It should be reviewed periodically -- perhaps every three years if there are no intervening changes in your personal life. You might want to keep an unsigned copy of the will at home for this purpose.
Aside from this periodic review, you should take a good look at the provisions whenever circumstances change, such as through marriage, divorce or the birth of a child. You also should review your will if there is a change in federal estate and gift tax laws or in state inheritance taxes.
A will can be changed either by writing an entirely new document or by amending or adding to the present will with a "codicil." But you can't change it simply by crossing out a word or a name or by writing in an addition. To be valid, a codicil must be prepared in accordance with the same kind of strict legal rules as govern the original will.
Some people consider the preparation of a will morbid. But procrastination doesn't prolong your life. A will is an important part of planning for your family's welfare. Because there is no way to know the time of your appointed going, it makes sense to take care of this important duty without further delay.