It’s Helpful … Like Driving with Google Maps
By Liz Sillin
It is a product of the COVID-19 era, but we have found that many people are thinking about wills and other estate-planning issues this year. The truth is that people of all ages should be thinking about a will, and not just during a pandemic.
What is a will, and why would you want one?
A ‘last will and testament’ is a document that spells out who it is that you would like to receive certain assets of yours — your ‘probate assets’ — at your death. In it, you name a ‘personal representative’ (formerly known as an executor/executrix) who oversees the directives in your will.
If you have minor children, you name a guardian and conservator for them. A will is a formal document, signed in front of two disinterested witnesses and a notary who attest to your apparent soundness of mind and that you appear to be over the age of 18 and signing willingly.
It’s a little like having Google Maps for those you leave behind — it lays out where you want your assets to go and how to get there. You can say who you want to receive specific assets, be it your mother’s wedding ring or your house, and you can direct assets to family, friends, and charities in whatever proportions you wish.
“It’s a little like having Google Maps for those you leave behind — it lays out where you want your assets to go and how to get there.”
If you die without a will, state law takes over. The state has tried to determine what most people would want in the absence of a will, but it is not nuanced. For example, if you are married and all your children are from that marriage, state law presumes that you want all your probate assets to go to your spouse — no direct gifts to your children, no charitable gifts, no gifts to friends. By contrast, if you are married and have children from a prior marriage, then state law presumes that the first $100,000 of your probate assets should go to your surviving spouse, and the rest of the probate assets are split 50/50 between the spouse and the children of the prior marriage.
State law cannot know that you have a disabled child who needs a special-needs trust or a house that you really want your surviving spouse to have. State law also sets forth who has priority to serve as your personal representative if you don’t have a will.
We should pause to talk about ‘probate assets.’ These are assets that you own in your own name — not jointly with someone else and not owned in a trust — and assets as to which you have not made a beneficiary designation or a pay-on-death payee. You own a house in your own name — it’s a probate asset. You own a house jointly with your spouse — it transfers to the spouse by operation of law at your death and is not a probate asset. If you have a retirement asset, such as a 401(k) or an IRA, or a life-insurance policy on which you have filled out a form designating a beneficiary, the asset passes to that beneficiary at your death and is not a probate asset.
If you make a will and in it you say your life insurance proceeds go to Joe, but your life-insurance beneficiary designation form says they go to Jane, the proceeds go to Jane. It is important to understand that the will only deals with your probate assets.
Why is a will helpful?
• It is easier to sell real estate from your probate estate if you have a will.
• You may not want your assets to go the way that state law directs. In Google Maps talk, state law provides directions to Boston, and you are thinking more about Alaska, with stops in Ohio and California along the way…
• You may not want the person state law prescribes as your ‘driver’ (the personal representative); perhaps you love your spouse dearly, but your sister is much more organized and would be much better at following directions.
• You want to name your neighbors to serve as guardians for your children if your spouse is unable to do so, because it is important that they stay in the neighborhood and stay in their current schools through high school.
• It provides certainty among those you leave behind that the map you have drawn is going to direct your heirs to where you want your assets to go, with the driver you have selected. It provides you, as well as your family, with certainty. And certainty, in this COVID-19 era, is a very nice thing.
Liz Sillin is an estate-planning specialist with the law firm Bulkley Richardson; (413) 272-6200.