By Sarah Duey, JD, CFTA, CAP®, Vice President, Trust Services
Who wants to spend an afternoon thinking about their mortality, estate tax, inheritance tax and probate court? No one, which is why more than half of Americans don’t even have a will.
The foundation of your estate plan is a Last Will and Testament. Without a will, you are leaving the disposition of your assets and the guardianship of your minor children to a court. In Nebraska, for example, if someone were married at the time of death and died without a will, the spouse does not receive all of the assets if the person who died has children.
Even from this one example, you can see that creating and structuring a will is complex. Let’s look at a few of the basics to help you start this important conversation.
What Is a Will?
A will is a legal document that directs what happens to your stuff, directs who will handle your stuff (your executor) and directs what happens to your children by naming a guardian to take care of them.
Where Can I Get a Will?
Check to see if your employer offers any kind of estate planning process or legal benefits. Some employers offer their stakeholders help in getting a will created. There are also online will-creation services. However, the big pitfall of the “DIY” will is that while a lawyer checks that the will complies with legal standards no one is verifying its correctness.
Hire an estate planning attorney
For most people creating a will, hiring an estate planning attorney makes the most sense. The attorney gives legal advice, verifies accuracy and can work with your financial advisor to confirm your will coordinates with your financial accounts, your savings plan and legacy wishes. Plus, the attorney can point out things that you may have never thought of – there are a lot of angles here, and a lot you can do to make sure your family members are well cared for.
It’s important to find an attorney who specializes in estate planning. State laws are constantly changing and you want to work with someone who is in that area of law on a daily basis so you can ensure you have a plan that complies. Ask friends and co-workers if they know a good estate planning attorney if you don’t know anyone. You can also look up your local estate planning council or bar association to see if they can give you some names to help with creating a will.
Next, you’ll want to connect with several estate planning attorneys and determine the best fit. Ask about the process and what fees you will likely face and ask about what you need to do to prepare for your next meeting. You’ll likely want someone who is younger than you so he or she can continue to help you with your estate law and planning needs throughout your lifetime.
Your estate planning lawyer might have a questionnaire to complete prior to your first visit. There are important questions that the attorney will want to ask. Usually, an hour will set the attorney up for success in getting what he or she needs to draft a plan that accurately outlines your wishes and correctly complies with your state’s laws.
What About a Trust?
Of course, creating a will is absolutely necessary regardless of whether you add a trust to your list of estate planning documents. But a common question is “do I need a trust?” Again, not surprisingly, the answer is, “it depends.”
A trust can be an important step toward fulfilling your family’s financial goals. There are specific advantages to having a trust: continuity of asset management, privacy and tax savings are among a few.
What Is a Revocable Living Trust?
A living or revocable trust provides for the organization and management of your assets during your lifetime, including any periods of disability. In addition, having your assets in a trust during your lifetime will prevent your estate from having to pass through a court-supervised process if you only have a will (or no will or estate plan) at the time of your death.
Creating a trust also provides an incredible amount of flexibility after your death. For example, you could have your trust divide up your assets after you are no longer living and create new trusts for your children to protect them against creditors and divorce.
The Drawbacks to Trusts
Trusts do have a downside. Compared with wills, creating trusts comes with additional work of funding the trust and making sure all assets are in the trust. Your attorney can discuss the options for creating and funding a trust with you. Regardless, you’ll still need a simple will, as a back-up, even if you do some trust planning.
Prioritize Your Estate Plan
Whether you decide to create a trust, prioritize getting your will and powers of attorney completed. Creating a will and other estate planning documents isn’t a Herculean task. The bonus of getting it done is that you’ll sleep better at night knowing you have a plan to take care of loved ones when the day comes and you are no longer able to.
Your financial advisor can help you begin this conversation about a difficult financial decision in a way that makes sense for you and your family. Knowing not just your holdings, but your style and values will help you shape a legacy that expresses your care for the people and causes you love. Let’s talk!
This is designed to provide accurate and authoritative information on the subjects covered. It is not, however, intended to provide specific legal, tax, or other professional advice. For specific professional assistance, the services of an appropriate professional should be sought. Cetera Advisor Networks LLC does not provide legal or tax advice.