Do you have a will? Even though people are living longer every day, you may be tempted to put it off a few more years—but think again. Be edgy and get a will; you’ll be in the minority.
A will is the most popular of estate planning documents and what most people think is all they need when it comes to estate planning. But a will doesn’t do a few very important things that are needed to round out your estate plan. Here are a few estate planning options as you think through what’s right for you and your family:
1. The “easiest” option is to not have a will at all.
Many people fail to create a will often because they’re too busy or they’re afraid to face their own mortality.
It’s “easy” while you’re alive because you don’t have to do any planning or even think about it. It’s not easy on your family if you become disabled or pass away.
But failure to do any planning means your family has to navigate the probate court system to help you or your estate in any way, whether it is making your medical decisions or handling your financial affairs. If you’re disabled or pass away, your loved ones have to petition the probate court—a lengthy, costly, and public process—to make medical and financial decisions for you, to access your bank accounts and other assets to cover your care and provide for your minor children, to figure out who the legal heirs of your estate are, to get permission to handle your debts, and to manage assets left to a minor child until they turn 18.
2. Having just a will is at least something, but it misses a few key areas.
With a will you can say who gets what, who is in charge of handling your estate, and a few other asset-related details.
But a will is not the right place for guardianship decisions. What if you haven’t passed away but are disabled and your children need a guardian? A will can’t help in this scenario, and it can’t help in the short-term emergency situation either when Colorado default state law says that only a blood relative can be the temporary guardian of your children. This is a difficult proposition for many Coloradans today whose family lives out-of-state.
And most importantly, it will does not avoid the probate court. If all you leave is a will (meaning no living trust described below), your family is subjected to the public court process. It’s expensive to pay all the people involved in probate—attorneys, court filing fees, appraisers, bond premiums, executive fees, and the list goes on. All of these fees are paid out of what would otherwise go to your children.
Heath Ledger left a will naming his daughter Matilda as his sole heir, and one might wonder why we’re even privy to that knowledge? It’s because a will is public—anyone can see what it says and what your children inherit.
3. A better option is to address more than “who gets what,” which means you need more than a will.
While “who gets what” is a key question in estate planning, it’s not the only one.
Other questions include things such as who do you want in charge of your financial affairs if you’re incapacitated? Who makes medical decisions on your behalf? Who is the guardian of your children when you’re incapacitated or pass away? How do you make sure your children don’t get total control over their inheritance at the young age of 18? How do you disqualify a family member from getting possession of your children if they’re not the right guardians to raise your children? How do you avoid the costly process of probate court?
A will doesn’t go very far in addressing these questions, but a more rounded out estate plan can help put your mind at ease that these other equally important estate planning questions are answered. And generally speaking, the better the planning is on the front end, the less expensive it is for your family on the back end.
4. The most ideal option keeps your family out of the probate court entirely by utilizing a living trust.
A judge—a stranger to your family—definitely doesn’t have to be involved in your life or your children’s lives if you don’t want them to. But you can only keep a court out of your personal affairs with a comprehensive estate plan that incorporates a living trust.
Paul Walker is a great example. Danielle and Andy Mayoras, contributors to Forbes.com, reported that the probate court filing reveals Walker had a revocable living trust, but because these are private documents, “we do not get to see the actual trust document. The probate documents only reveal that the trust exists and that Meadow is the sole beneficiary of it.” In Colorado, someone looking at the public records wouldn’t even know that much.
A living trust allows your family immediate access to your assets (with a will going through probate, assets get tied up in probate court for months on end), keeps your financial affairs private (probate is a public process so anyone can see your asset information once you pass), and protects your children from stepping into a potentially disastrous inheritance scenario at 18 that they’re not equipped to handle (typically not covered as well in a will as it should be or could be with a living trust).
Despite popular opinion to the contrary, a living trust isn’t exclusively for the old or the wealthy.
It’s not a quantitative measure of age or dollars. The real question to be asking yourself about whether a living trust is right for your family is whether you feel educated by your estate planning attorney that you know what the roadmap looks like if you don’t have a trust, and what the roadmap looks like if you do. Then you are the one making the informed decision about whether a living trust is right for your family.
Three-quarters of Americans die without a will these days. That doesn’t have to be you.