Your Estate Plan: Ideas You Can Really Use

The Use of Wills as Part of Your Estate Plan

By Earl H. Cohen, Attorney at Law

Welcome to the next in a series of articles, Your Estate Plan.

Last month we discussed the use of trusts as part of your estate plan. This month we'll discuss another one of our Top Estate Planning Tools, wills.

Wills, along with living trusts can, and usually will, serve as the core of your estate plan. By themselves, wills can provide for the distribution of tangible personal property as well as all other assets whether to family, friends or charities. Used with a living trust, a will can provide for distribution of the balance or residue of the estate to your trust. Such wills are often referred to as "pour over" wills. Properly drafted, a will provides for the appointment of a personal representative (sometimes referred to as an executor) and guardian for your minor children. A will can also be drafted to provide, within the will, for the establishment of trusts for your spouse, your children or even charities. A trust in a will, known as a "testamentary trust," takes effect after death and completion of probate of the estate.

We are often asked:

• "If I have a will, does my estate have to go through probate?" The presence of a will does not necessitate the probate of an estate. On the other hand, having a will does not eliminate the probate of your estate. Probate becomes necessary where your estate contains assets registered in your individual name, including real estate, and where there are minor children without a surviving parent necessitating the appointment of a guardian.
• "What happens if I die without a will?" Without a will your property passes according to the state's intestacy statutes. In some cases that works well. But in most cases, the results are not what the surviving heirs expected or desired. With a will you have the opportunity to: plan who receives your assets and the exact way your assets will pass to those beneficiaries, reduce overall estate and income taxes, protect beneficiaries from creditors and financial predators, appoint those who will administer your affairs after your death and nominate those who will care for your minor children and help charitable causes that are important to you.
• "Why can't I just draw my own will?" As long as a will, typed or in your own handwriting, is signed in the presence of two qualified witnesses, each of whom sign their names, the will can be valid. The big issue is not just validity, but whether the will does the job. Only with the advice of a qualified attorney can you be sure that the will accomplishes the task.
• "If I have a trust, why do I need a will?" The answer is simple and practical. While we would hope that our clients would succeed in registering all of their assets in their trust during their lives (thus completely avoiding probate) that often doesn't happen. Even with a living trust, most clients will often own some assets in their own name. A will becomes necessary to assure that those assets will pass through the estate and on through to the trust.

While a full discussion of the issues and techniques surrounding the use of wills is beyond the scope of this article, feel free to contact us for an easy to understand monograph.

Watch for next month's article in which we will discuss The Use of Powers of Attorneys in Your Estate Plan.

For further information on how these and other estate planning techniques may apply to your situation or your charitable planned giving strategy, feel free to call me at 612-339-4295.