Making Sure Your Will or Trust Works for You

This article will give you some suggestions for working with your lawyer to produce a will or trust that lets you call the shots about how your want your loved ones provided for and your property distributed.

But to take advantage of these ideas, you have to take the plunge and decide to create such a document. Evidently, that’s a hard step for a lot of people to take. Statistics show that more than half of us don’t have a will or trust.

If you’re one who hasn’t gotten around to it yet, you run the risk of dying intestate,which in turn means that the state would step in to make the decisions that you didn’t make.

When the State Decides. State law specifies how your property is to be divided if you don’t have a will or trust. The specifics vary by state, but the principle is that the state will assume that you wanted so much of your property to go to your spouse, so much to your parents, etc.

That may work if the state’s assumptions happen to match yours, but probably they don’t. Maybe you wanted to apportion the amounts differently, or give property to a nonrelative, or to a relative who is not in the immediate family (a favorite niece, for example). And maybe you wanted certain items – a car, a family heirloom, etc. – to go to certain people. None of this will happen if you don’t leave directions.

If you have minor children, your will can specify who is to be in charge of their upbringing. If you don’t have a will, a court will have to decide, and that not only complicates the process but opens the possibility that they may be placed in the care of someone you wouldn’t have chosen.

Finally, if you don’t have a will or trust, you’ll probably complicate the whole process of probating your estate (paying debts and taxes, distributing bequests, wrapping up your affairs). You open up the very real possibility of increased expense and delays in distributing your property, both of which could be harmful to your family.

When You Decide. There’s no set formula for what goes into a will or trust. There are some things you might want to think about if you fall into a certain category-part of a younger couple or and older couple, single, divorced, and so on. You and your lawyer can discuss your needs and options in planning your estate.

Here are some suggestions on how to handle the more common clauses of a basic will or trust, assuming that the trust contains all or most of your property. This list is far from complete, but it will help you begin to plan. While you can put funeral directions in your will or trust, be aware that this document might not be found until after you’re buried. It’s best to put these in a separate document.

Funeral Expenses and Payment of Debts. Your estate is still liable for your debts. If they exceed your assets, your state law will prescribe the order in which they must be paid by category. Funeral expenses and expenses of administration usually get first priority. Family allowances, taxes and last illness expenses will also appear near the top of the list. If you want certain creditors to be paid off first, ask your lawyer how to ensure this will happen in light of your state’s particular law. You can also forgive any debts someone owes you by saying so in this document.

Gifts. The core of most wills or trusts is the section where you specify which recipients are to get your property. Be sure to carefully identify the recipients, including their addresses and relationship to you – the last thing you want is confusion about who is to receive a gift.

Be sure to anticipate changes that might take place between when you write the document and when it comes into effect. What if one of your beneficiaries dies before you? Do you want that person’s gift to go to his heirs or to someone else that you specify? Your will or trust can handle either alternative – but your lawyer has to know what your wishes are.

And try to anticipate any confusion that might occur because of how you describe the gifts you’re making. Sometimes, it may be a bad idea to be general. If you leave “household property” to someone, that category is vague enough to spark a dispute in court or at least in the family. Spell out the items (“stereo equipment, clothing, books, cash”), or just omit any mention at all and let them pass through the residuary clause.

But if the specific item of property might change between the time you write the document and the time you die, you might want to be more general in your phrasing. Don’t specify that you’re giving someone 500 shares of AT&T (you may sell it before you die and but something else) but rather “my stock portfolio”, or a specified percentage of it or a dollar amount of the stock you own at death. Make sure the language you use is clear: “I give”, “I direct that “, and so on. Terms like “It is my wish that” might be taken to be merely an expression of hope, not an order.

Remember also that your property may include intangible assets like insurance policies, bank accounts, certain employee benefits, and stock options. Some of these may pass outside of your will or trust because of how they are held (i.e., if held injoint tenancy with right of survivorship,the property will pass automatically to the other owner on your death). Some may pass through beneficiary designations (i.e., employment benefits that go to your spouse). But some may pass through your will or trust. It’s important for you and your lawyer to have a complete list of all the property you own and coordinate how all of it is to be passed.

You can save on taxes by using gifts wisely. By making gifts in your will or trust to approved charities and institutions, such as universities, you can avoid taxes on the amounts given and lower your taxable estate.

Gifts of Real Estate. If your home is in joint tenancy with your spouse, it will pass to him or her automatically. If not, you’ll have to specify who is to get the property.

It is possible to give what lawyers call a life estate? This is a gift to a person, to use for as long as he or she lives, that will revert to your estate or pass to someone else after he or she dies. It’s a way of assuring, for example, that your husband will have the use of your house while he lives, but that it will pass to the children of your first marriage after he dies. The rules governing such transfers, or any transfers different from a fee simple outright transfer of ownership, are complicated, but your lawyer can help you make the gift properly.

If you die before you’ve paid off the mortgage on your house, your estate will normally have to pay it off. If you’re afraid this will drain the estate too much, or if you want the recipient of the house to keep paying the mortgage, you must specify that in your will or trust.

Executors/Trustee. Your will should designate an executor and a successor in case he or she is unable to serve. (Your trust should do the same regarding its trustee.) It helps to spell out certain powers the executor can have in dealing with your estate: to buy, lease, sell and mortgage real estate: to borrow and lend money: to exercise various tax options. Giving the executor this kind of flexibility can save months of delay and many dollars by allowing him or her to cope with unanticipated situations.

Residuary Clause. This is one of the most crucial parts of a will, covering all assets not specifically disposed of in the will or elsewhere. You may accumulate assets after you write your will, and if you haven’t specifically given an asset to someone, it won’t pass through the will – unless you have a residuary clause giving all such property to a beneficiary. (If your will omits a residuary clause, the assets not left specifically to anyone would pass on through the intestate succession laws, after long delays and extensive court involvement.)

Testamentary Trust. You can set up a testamentary trust in your will, or have your will direct funds from your estate into a trust you have previously established (your will would then be a pourover will). You would normally do so in a separate clause in your will.

A General Tip. Be sure to carefully proofread your will or trust. Does page nine follow page eight? If you are leaving percentages of your estate to different people, do the percentages add up to 100%?

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