We frequently are asked to review old Wills for new clients. Many of those Wills are technically correct, but lack many of the “what if” scenarios that a more experienced estate planner would consider mandatory. We understand how this happens because when estate planning isn’t an attorney’s primary focus, it can be difficult to stay up-to-date on the current trends and recommendations of language that should be included in your Last Will and Testament. To ensure your Last Will and Testament provides the best protection for your estate and beneficiaries, here are some of the most common things you should be on the look-out for:
1. Does your Will name an alternate Executor or Trustee? Should your preferred Executor/Trustee be unable or unwilling to serve and you have no alternate named to serve in their place, it may be necessary for the Court to appoint a successor Executor/Trustee and the appointed Executor/Trustee may not be someone you would want handling your estate affairs.
2. Does your Will name contingent beneficiaries? It’s important to not only name someone to receive your estate assets, but also to have a contingent beneficiary in the event your first named beneficiary predeceases you. Failure to name contingent beneficiaries can result in your estate assets being distributed to individuals or organizations whom you would not have chosen yourself.
3. Would you have a taxable estate and if so does your Will include tax planning? Inclusion of specific tax planning language can save your beneficiaries thousands of dollars in unnecessary taxes, if your estate is found to be taxable. We recommend including tax planning language for anyone who is at or near the current taxable amount ($11,400,000 in the year 2019). Only an attorney familiar with tax planning should draft your estate planning documents if you believe your estate may be at or near a taxable level.
4. Does your Will include spendthrift provisions for any beneficiaries who are young, irresponsible or financially inexperienced? Without this special language, estate assets may be distributed outright to a beneficiary who is not prepared to handle a lump sum distribution. If you have a beneficiary with a gambling, drug or alcohol addiction, you can still provide for them in your Last Will and Testament, but have their share of the estate managed for them by a Trustee of your choice. The Trustee can have authority to control the distribution and investment of the assets to protect your beneficiary from their own poor judgments. Want to provide for a young beneficiary who might not be mature enough to handle a lump sum distribution? Appointing a Trustee to manage their assets until the beneficiary reaches an age you pre-determine is one way to assure the money will be available to the beneficiary at a time you think they may be ready for the responsibility.
5. Does your Will name alternate Guardians and Conservators for your minor children? Once again, if the original individuals you have named as Guardians and Conservators for your minor children predecease you or are incapacitated, the Court will step in and decide whom your children will live with and manage their money. This could result in a difficult situation for your children, if the Court selects someone you dislike. If you name married couples for either of these roles, you should also address who will be the Guardian or Conservator in the event of a divorce.
6. Does your Will properly address provisions for a Special Needs person? If you name someone as a beneficiary of your estate who receives government benefits, your inheritance could disqualify them from receiving government assistance unless you include very specific language in your Last Will and Testament. Only an attorney familiar with Special Needs planning should draft your documents to ensure your beneficiary will retain their eligibility for government benefits and still receive their inheritance from your estate.
Failure to include certain provisions in your Last Will and Testament can result in a prolonged probate with additional expenses to the estate, not to mention causing your surviving family more stress during an already difficult time. Seek out an experienced estate planning attorney to help with your planning. Your beneficiaries will thank you.
For more information on estate planning, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
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