Author: Attorney Joseph R. Marion, III, Adler, Pollock & Sheehan
You probably don’t have to be told about the need for a will. It’s been said over and over again. But do you know what provisions should be included and what’s best to leave out? The answers to those questions may not be as obvious.
Typically, a will begins with an introductory clause, identifying yourself along with where you reside (city, state, county, etc.). It should also state that this is your official will and replaces any previous wills. After the introductory clause, a will generally explains how your debts and funeral expenses are to be paid. In the past, funeral expenses were often paid out of the share of assets going to your children, instead of the amount passing to your spouse under the unlimited marital deduction. However, now that the inflation-adjusted federal gift and estate tax exemption has increased to $11.18 million for 2018, this may not be as critical as before. The provisions for repaying debt generally reflect applicable state laws. Consult with your estate planning advisor or attorney concerning your options. Don’t include specific instructions for funeral arrangements. It’s likely that your will won’t be accessed in time. Spell out your wishes in a letter of instructions, which is an informal letter to your family. A will may also be used to name a guardian for minor children. To be on the safe side, name a backup in case your initial choice is unable or unwilling to serve as guardian or predeceases you. Addressing estate taxes The next section of the will may address estate taxes. Remember that this isn’t necessarily limited to federal estate tax; it can also apply to state death taxes. You might arrange to have any estate taxes paid out of the residuary estate that remains after assets have been allocated to your spouse. Furthermore, if you’re using a testamentary trust, it may be required to pay any resulting estate taxes. Coordinate this with other aspects of your will. You can’t anticipate every possible scenario, so rely on your advisor or attorney for guidance.
One of the major sections of your will — and the one that usually requires the most introspection — divides up your remaining assets. Outside of your residuary estate, you’ll likely want to make specific bequests of tangible personal property to designated beneficiaries. For example, you might leave a family heirloom to a favorite niece or nephew. When making bequests, be as specific as possible. Don’t simply refer to jewelry or other items without describing them in detail, especially if you own multiple rings or watches or the like. This can avoid potential conflicts after you’re gone. If you’re using a trust to transfer property, make sure you identify the property that remains outside the trust, such as furniture and electronic devices. Typically, these items won’t be suitable for inclusion in a trust. If your estate includes real estate, include detailed information about the property and identify the specific beneficiaries. Conversely, if you own property jointly with rights of survivorship, the real estate passes automatically to the surviving owner. Once you’ve covered real estate and other tangible property, you can move on to intangible property, such as cash and securities. Again, you may handle these items through specific bequests where you describe the property the best you can. Include cash in your home or other places, such as a safe deposit box. Don’t forget about money you’re owed. Assign beneficiaries for items that don’t fit neatly into any other specific bequests. Finally, most wills contain a residuary clause. As a result, assets that aren’t otherwise accounted for go to the named beneficiaries, often adult children, grandchildren or a combination of family members.
Naming an Executor:
Toward the end of the will, name the executor — usually a relative or professional — who is responsible for administering it. Of course, this should be a reputable person whom you trust. Also, include a successor executor if the first choice is unable to perform these duties. Frequently, a professional is used in this backup capacity. Be sure to meet all the legal obligations for a valid will in the applicable state and keep it up to date. Sign the will, putting your initials on each page, with your signature attested to by witnesses. Include the addresses of the witnesses in case they ever need to be located. Don’t use beneficiaries as witnesses. This could lead to potential conflicts of interest.
When a Common Disaster Strikes:
If you’re married, your and your spouse’s wills should complement each other. Frequently, an attorney will advise each spouse to insert a “common disaster clause” in the respective wills. As the name implies, a common disaster clause addresses situations where the spouses die almost simultaneously in a common disaster. This addresses issues about the sequence of death to establish where assets are transferred first. It’s especially important in second marriages where each spouse has children from a prior marriage. Without such a clause, the wills may trigger unintended results. A common disaster clause can also provide protection in situations where property is bequeathed to another beneficiary — say, a child or sibling — and both the person making the will and the beneficiary die within a short time of each other.
Turn to the professionals:
Regardless of your age, health and net worth, if you want to have a say in what happens to your children and your wealth after you’re gone, you need a will. Contact your estate planning advisor or attorney to help you draft yours.
Licensed in RI, MA, and NY, Joseph is a frequent lecturer for the Boston Bar Association and the Rhode Island Bar Association on estate and long-term care planning issues and land conservation planning. His areas of practice include estate and income tax planning, business succession planning, land conservation planning, long-term care planning, probate and trust administration, special needs planning and real estate conveyancing.
Joseph often counsels clients on estate and income tax savings techniques including the most tax efficient ways which to transfer wealth and family businesses through multiple family generations. He also helps families preserve assets through advance planning for their long-term care needs. He frequently represents trustees and banks in their service as fiduciaries in the settlement of complex estates and beneficiary disputes. Learn more Joseph R. Marion, III