Is A Will The Right Way?

A Will can designate guardians for minor children, instruct how your assets (house, life insurance policies, retirement accounts, investments, cryptocurrency, bank accounts, car, pets, etc.), will be distributed, and keep your family out of conflict after your death. A Will is a good estate planning tool, but like Trusts, whether a Will is the best estate planning tool for your family depends on your unique situation. Here are some advantages and disadvantages you can consider when deciding whether a Will is right for you.

A Will has one main purpose: post death planning. You draft your Will while you’re alive to memorialize your post death wishes. That Will won’t be in effect until you die, and a court decides if its valid (more on that below). Because it’s a post death document, it won’t protect you or your family if you become incapacitated or disabled. If disability or incapacity planning is one of your estate planning goals check this blog post out: 5 Things You Need to Know About Revocable Living Trusts.

The biggest advantage to creating a Will is that it lets you decide what happens to your assets after you die. Drafting a Will tells the people you love, and the courts, who gets what. Without a Will your things a be distributed based on the laws of intestacy of the State. Dying intestate (without a Will or Trust) costs your family additional expense, time, conflict, and frustration. Dying intestate also means you don’t get to decide what happens to your assets, the State does.

Another advantage of a Will is that you can name guardians for your minor children. “What happens to my kids if we both die?” is one of the most common questions I hear from parents. If one parent dies, the other parent will be there to take care of the children. If both parents die, a guardian must be appointed to care for them. Through a Will you can name guardians to care for your children in that unfortunate circumstance. If you don’t pick a guardian for your children in your Will or other estate planning document the court will pick for you. Including guardians in your Will puts you in control of this important decision.

Want to name a guardian but not sure where to start? Check out this blog post: 5 Things to Think About When You’re Picking a Guardian for your Kids.

A disadvantage of a Will is that it won’t avoid probate. Probate is a post death court process where a judge determines whether your Will is valid. Once the court makes that decision, it supervises the administration and distribution of your assets to make sure everything is distributed like you wanted, and that everyone who is owed money (creditors and the government) gets paid. Probate is expensive and time-consuming, causes unnecessary delays in the settlement of your estate, and can tie up parts of your estate value during the time your estate goes through probate. All expenses associated with probate, including attorney’s fees, are paid by you through your estate. Many of my clients would rather avoid probate which can be done using certain types of Trusts.

If you have children a Will might not be the best estate planning tool. Minor children can’t inherit until they turn 18. What happens in the meantime? The court gets involved and establishes a guardianship or conservatorship for any property, life insurance, savings accounts, etc., that was left for them. The court appointed guardian or conservator controls the asset and makes distributions as they believe necessary until your child turns 18 and can legally take whatever you left them. All the expenses associated with this process are paid by your estate. Like probate, this is a process that many people want to, and can, avoid with proper estate planning.  

If you’re not sure whether a Will is the right tool for your family, consul an attorney. Set up a free initial call or consult by clicking here: or email me at [email protected].

Please note this article is not intended as legal advice. For that you need to consult an attorney.

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