Are you one of the 62% of Americans who hasn’t created a will for themselves and their heirs? When asked, many people simply don’t think a will is necessary for them. They feel like they aren’t rich enough or have important enough belongings to need a will.
What’s your reason for not having a will done? You’ve seen the dramatic scenes play out on television shows of the family fighting over who gets the business or the vacation house. Maybe you feel like it’s obvious who should get your stuff.
But is it? When you really understand what is a will, you might better understand why having one is so important for you. Creating a will certainly goes beyond who’s going to inherit your beloved harmonica collection.
Read on to learn everything you need to know about wills, why they’re important, and how to create one.
Table of Contents
What Is a Will?
A will is a legally binding document that you write before your death. It dictates how you want your belongings, assets, and affairs handled after your death.
Often a will can put aside troubles between family members since it makes your wishes clear. If you have minor children, the legal document spells out how you want your children cared for following your death. You can spell out your wishes about who should care for them and how your assets should be used in that regard.
Types of Wills
Not all wills are 100% effective. In fact, the type of will and how you go about creating it will impact its effectiveness. More on the process of creating a will come later on.
Let’s take a closer look at some different types of wills you could have.
A testamentary will is the most common type of will. It’s also the one type that is least likely to be overturned if it’s contested.
A testamentary will abide by all of the guidelines of the state where it’s created. They are often done with the help of an attorney, although that isn’t entirely necessary.
The testamentary will also:
- Be signed by the testator
- Witnesses to will be presented when it’s signed
- Signatures are notarized, making them more official
This is a formal legal document that spells out your wishes from who cares for your children, your possessions, and even how your pets should be cared for after your passing.
This type of will is one of the least effective to legal challenges. In an oral will, the testator recites out loud the wishes they want in their will, and they do this in the presence of their witnesses.
This could create obvious challenges if someone wanted to contest the will about who heard what and how something was stated.
A holographic will has a testator write the will, often in a handwritten manner, and sign it. What’s missing in this type of will is that it’s not witnessed or notarized. This makes the will less official and more open to challenges if someone were to disagree with what is in the will.
Because of the lack of witnesses, many states no longer even recognize the validity of a holographic will.
Pour-over wills are used when there is also a trust involved in the estate. Essentially the idea is that you pour over or look to the estate for all the pertinent information.
Most estate planners will tell you, though, you should have a legal will as part of your trust and estate planning.
A mutual will is often in play with married couples. With a mutual will, the spouses create the will and sign together. When one spouse dies, the other is still bound by the terms of the will.
Understanding the Differences Between a Will and a Trust
When people consider estate planning, they are often confused by a will vs a trust, are they the same thing? While the terms are often used synonymously, they aren’t the same.
A will spells out your wishes following your death. It names who you want to bequeath your belongings to and who should care for your minor. A trust can do those things, but it also does more in the handling of your assets.
A trust can identify a power of attorney who can act on your behalf. It also goes into effect when it’s created versus after your death.
If you have spent your life building a business, you might want to consider a trust as it allows you to dictate what happens with your business, including what should happen to it and who should take it over.
A trust is important for asset management while you’re alive and after you’re gone too.
Types of Trusts
There are many different types of trusts you could use for your estate planning purposes. You probably want to meet with an attorney who specializes in them to make sure you understand and choose the best one for your needs.
Types of Trusts
A Revocable Trust can be changed at any time, avoids probate in the assets held by the trust, and is the most simple type of trust. However, the benefits of a revocable trust are limited.
An Irrevocable Trust cannot be changed. If assets are transferred to an Irrevocable Trust so that the assets are no longer available to the Grantor, the assets in the trust will be protected from the nursing home (after 5 years); the assets will avoid probate, the stepped-up basis of the property is available; income tax reporting by you is the same, and the capital gains exclusion may still be available to you as grantor. Although you may not have control over the assets in the trust in the sense that you are not able to access principal, you may receive any income generated by the trust assets, you may borrow against the trust assets, and the assets are protected from creditor claims, assets in an irrevocable trust may not be considered marital property for division in the event of a divorce and assets in an irrevocable trust may not affect qualifying for college financial aid.
Medicaid Qualifying Trust
Proper advance planning by the use of trusts, spend-down strategies, and the disabled and caretaker child exceptions are available to establish Medicaid eligibility.
The primary purpose of a Medicaid qualifying trust is to protect the assets from nursing home care. There is a five-year (5) look-back period that is covered by a Medicaid application. With respect to Medicaid, there are distinct transfers of asset rules. If the transfer of assets was before February 8, 2006, the period of ineligibility begins on the first day of the month in which the property was transferred. For example, if a client transfers property with a fair market value of $50,000.00 to his or her child, he or she will be ineligible for MassHealth, for the subsequent 182 days ($50,000.00 divided by $274.00 = 182.48).
There are look-back periods that authorize the MassHealth agency to review an applicant’s financial statements and take into account any transfers made during the 60 months prior to the date of application.
Where the transfer was on or after February 8, 2006, there is a different rule. The length of ineligibility is calculated the same as stated above. However, the major difference is that the ineligibility period does not begin until the first day of the month in which the resources were transferred for less than fair market value or the date in which the individual is otherwise eligible for MassHealth payment of long term services, whichever is later. That is why it is very important when someone makes an application for Medicaid – equally important is the cut-off dates referred to above, with respect to the transfer of any assets.
We are very familiar with the Medicaid application process and we will review any transfer of assets that you may have made in the past in order to determine if there is a period of ineligibility. We stress asset protection. We will explain to you the community resource allowance. We will also discuss the spend-down of assets and the allowable ways to reduce your assets. We will touch upon the appeals process, in the event of a Medicaid denial.
All transfers for less than fair market value are reviewed by the Long Term Care facility, located in Taunton, Massachusetts, and all Medicaid determinations are issued from that office. Should the initial application be denied, it is often necessary to appeal the decision and re-submit the Medicaid Application. Once we prepare the initial application, should it be denied, we continue through with the process until completed.
In addition to the Revocable and Irrevocable Trusts, there are also the following types of Trusts:
Realty Trust – which holds title to real estate and basically takes it out of your name for the purposes of an estate plan.
Nominee Trust – which basically holds other assets such as bank accounts and stock in the name of the nominee trust. Many of these documents are prepared for the purpose of keeping the main trust document private.
Life Insurance Trust – holds any life insurance that you may have and keeps the life insurance proceeds outside of your estate. This is very important where your estate exceeds the exemption for estate tax purposes. The life insurance trust, if properly prepared, removes from your gross estate, any life insurance proceeds. A lot will depend on whether or not your gross estate exceeds the current exemption in Massachusetts.
By-Pass Trust – Alternatively, if your primary purpose is to save or avoid estate taxes at the time of death, we will explore the use of a By-Pass Trust.
What Should Be Included In Your Will?
Earlier, it was mentioned that many people don’t actually have a will because they don’t think they have the right amount of assets to need one. So, what should be included in your will when you create one?
First, you want to take stock and list out all of your assets and debts. You’ll want to include who gets assets and how you want your debts taken care of after your death. Remember, too, that assets come in many forms, not just money. Do you have things stored in a safe or bank safe deposit box? Consider family heirlooms too.
For possessions that are important to you and want to go to a specific person, you can include a letter of instruction. This is a letter included with the will spelling out wishes about distributing your possessions to certain people.
You also want to include your wishes for minor children, including who should care for them and your financial wishes for them.
Must You Have an Attorney Prepare a Will?
You don’t have to have an attorney create a will for you. In fact, there are many forms online available that allow you to fill them in to create your own will.
Having said that, an experienced estate attorney is never a bad idea. They will know the laws of your state and make sure your will follows them. They can also be invaluable if you have a more complex estate with estate planning and deciding what type of trust might work best for your situation.
What Happens When You Die and You Haven’t Created a Will?
If you die without a will, your state declares you an intestate. This means your state will apply the laws of the state to settle your affairs. This can be a cumbersome process for your heirs and be expensive too.
Your estate will need to go through the probate process and have an executor named. Probate court is the term used when the state has to go through transferring your assets and property to your heirs.
A will still need to go through probate court, yet it’s much simpler and less costly for your heir when your affairs and wishes are spelling out in the will. When you write a will, you also name an executor. More on this later. But if you don’t have a will, then the probate court names one for you. You won’t have any say in who is handling your affairs after your death.
Probate is also a matter of public record which means your affairs are not kept private.
Who Should Be the Executor for Your Will?
An executor of a will is the person named to carry out the wishes of the will. You can name whomever you wish to be an executor. Many people will name a spouse or adult child to act as an executor.
You can also name an attorney to act as your executor. This is sometimes a smart option if there may be unhappy people with what’s in the will or you have a complex estate.
The Process of Writing Your Will
As you prepare to write your will, you want to start to gather all the information you need. The more specific you can be in your will, the more effective it will be and easy for your executor to carry out.
You will want the names, addresses, and birthdates of anyone who will be named in the will. You will also need to gather:
- Debts, including mortgages, car loans, student loans, and credit cards
- Real estate information
- Bank accounts
- Retirement accounts
- Life insurance policies
- Business information
- Other valuables
You should also gather other insurance policy information on any of your valuables to include in the will.
Once you have this all gathered, then you begin the process of naming how you want it dispersed, transferred, or handled after your death.
Spouses, Same or Separate Wills?
It’s recommended that spouses don’t do a will together. In fact, most states won’t even recognize them. It would be unusual circumstances to have both spouses die at the same time. It might be unusual too that they have completely common assets.
You and your spouse should absolutely discuss and agree on what happens with your assets. You will likely name each other as heirs. But it’s better to have separate wills from each other.
Important Reasons Why you need a Will
There are so many important reasons to create a will. You want to ensure your minor children get cared for the way you intend. You also want your personal property passed on to your heirs following your wishes. Wills can distribute your property, name an executor, name guardians for children, forgive debts and more. Having a will also means that you, rather than your state’s laws, decide who gets your property when you die.
There are some other important reasons too. It does force you to have uncomfortable conversations about the future that many people spend a lifetime avoiding. You don’t want your children’s care left up in the air because you didn’t plan, for example.
You also get to decide who handles your affairs instead of that decision being made by the court. You have many important personal possessions that won’t get to the right person when a court handles your affairs.
Another important aspect of a will and estate planning is charitable giving. You may wish to designate some of your assets to an important charity in your life.
WHY YOU NEED A HEALTH CARE PROXY
A health care proxy is a document that names someone you trust as your proxy, or agent, to express your wishes and make health care decisions for you if you are unable to speak for yourself.
WHY YOU NEED A DURABLE POWER OF ATTORNEY
A Durable Power of Attorney provides extensive power to the individual who is assigned that role. Absent an appointed Agent in a Durable Power of Attorney, it would be necessary for a family member or loved one to petition the court to become the guardian over the incapacitated person.
Answering Your Questions About Wills and Estate Planning
Do you still have questions? Here are some short answers to the most common questions related to creating a will.
What Happens If You Don’t Have a Will?
Your estate will need to go through probate court. It can be expensive and time-consuming. It also means the court is making decisions about your assets, property, business, and children.
Can I Change My Will Once I Make It?
Yes, a will can be changed at any time. You just want to make sure you have it witnessed and notarized. In fact, you should revisit your will regularly to make sure it’s up to date. Any major life event should require you to revisit your will.
Who Is the Best Choice for Executor of My Will?
There isn’t one answer to this question. It’s a personal choice. You want to choose someone who will make the best decisions on your behalf. It would be best if you made your heir aware of who you choose.
Who Should Witness a Will?
You want to have a party who’s called a disinterested witness sign your will. This means they have no vested interest in what the will says. They are simply signing, saying you created of your own free will.
What Does It Mean to Contest a Will?
When a will gets contested, it means someone doesn’t agree with what the will says. This involves going to court for the parties to argue it out. Making your heirs aware of the will and what it says can often help to avoid this problem.
Understanding the Importance of Estate Planning and Creating a Will
Understanding what a will is can also help you see why it’s so important to have one. It helps protect your heirs and your assets you’ve spent a lifetime growing. If you have planned for college savings, buying insurance for your home and cars, planned for retirement, why would you not plan for what happens to it after you’re gone?
As you work on your estate and consider its future, it’s also a good time to evaluate your insurance needs too. Look at your property and assets and make sure you have the coverage you need. Contact us today to discuss your insurance needs for the future.