One of the roles of an attorney that I take to heart is educating others. I finally got the chance to answer some questions from Honeycomb Moms about Estate Planning. I found that a lot of Millennials have the same questions so I jumped at the opportunity to collab for a blog post on this topic. Check out our discussion below and don’t forget to share!
“Where do I include any wishes I have regarding the funeral? Is there a separate form?”
Although you technically can put your funeral wishes in your will, it is best practice to have them in a separate form, “Final Arrangements.” This is because probate usually doesn’t start until after the funeral. Any wishes or instructions that you may have left in the will may not be found in time. Also, the will is where you dispose of property. By law, your body isn’t the property of the estate.
“Do you recommend couples make one joint will, or should each person do one separately? Why or why not?”
It depends on the wishes of the couple. Joint wills are done typically with the understanding that if one spouse dies, the surviving spouse will inherit everything and when that spouse dies, the remainder of the estate will go to the children.
This sounds like a “no-brainer” at first but there are some potential issues that may arise. What if you wanted to set aside money for your grandchildren? What if the surviving spouse remarries? What if you wanted to give your child some of his inheritance early for a down payment on a home or to start a business?
It is best to discuss your wishes with your partner and your attorney so that she can best recommend how to proceed.
“What happens if I detail a plan regarding a shared asset that my husband doesn’t agree with?”
It is best that the couple comes to an agreement about their assets before meeting with their attorney. If you purposely leave an asset unmentioned in a will, depending on the language of the will it may default to a residual clause. This means whoever gets the remainder of the estate would get the asset. If there is no residual clause, the asset will be treated intestate and proceed through the courts to be divided up according to state laws. This can be costly and sort of defeats the purpose of having a will made in the first place.
“How do I stipulate specifics like wanting children to take ownership of a business when they are of a certain age?”
Business Succession Planning, something I encourage every business owner to have, is a separate plan for how a business will proceed in the event of the death or incapacitation of the owner.
“If we only have one child when we make a will but would like to plan for more, how do we handle that in the will?”
Drafting a will with ambiguity or trying to make it inclusive of non existent persons can be problematic. You can amend your will as your family grows by adding a codicil.
“Do wills have to be signed or does an email to my closest family and friends suffice?”
Each state has its own legal requirements on how to legally execute a will.
“Should I include a power of attorney form with my will?”
A Power of Attorney is a standard Estate Planning document and it can be executed at the same time as your will. It is prudent to plan for incapacitation, choose an agent, and discuss your wishes with your agent beforehand, in the event that incapacitation should happen.
“Do wills cover who gets our child, or is that a separate form?”
You can name the preferred guardian of your child in the event of your death. Keep in mind that the surviving parent will automatically get custody of the child unless the court has good reason to interfere. If there is no surviving parent or if the court finds the surviving parent unfit, it will award guardianship to whom it sees fit. This is not automatically the grandparents or aunts and uncles but rather who the court sees fit. Meaning, someone that doesn’t know you or your family will make this important decision on your behalf. That is why it is best to name a guardian and an alternate guardian (in the event that one is unable to perform) in your will.
“I don’t plan on the people in my will becoming drug addicts or mentally impaired, but how do I handle that with language in my will just in case?”
This is actually a common concern. If you are concerned with a minor or adult child blowing through their inheritance or being taken advantage of, you may want to consider a trust. This will allow you to place stipulations and most importantly, appoint a trustee to oversee the distribution of the assets.
“Can you point me to any reputable free templates for a will?”
Lol, I can’t and I promise this is not a biased answer. There are no two families alike so there is no cookie cutter approach to counseling families. I think it is pivotal to have a licensed attorney listen to your needs to best ensure your wishes are documented as intended.
“When should I use a trust?”
There are many different types of trusts, each particular to a certain purpose. Generally speaking, a trust can be a solution for families with special needs members, high net worth, or a family that wants to leave their assets in a structured manner for their children. These are the most common needs bet definitely not all.
“About how much is normal to spend for an attorney handling estate planning for my family?”
Estate planning typically starts around $400 and can go up in price depending on the complexity of the needs.
“Should I hire an attorney? Why or why not?”
Yes. I love a good deal just like the next person but I don’t think legal services is one of those things you should skip on. My mentor told me that the very fist probate case she litigated was a Legal Zoom will. So with that said, discussing your wishes with an attorney can assure that you are correctly translating your wishes to paper.
from the lawyer next door,
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