Where There's a Will, There's a Way Your Assets Will Be Distributed as You Wish

Life rarely stays the same, and neither should your estate plan.

Major life events often require changes to your estate planning documents. We often tell clients to remember the five D's: dependents, divorce, downsizing, disability and death.

Any of these events can quickly make an estate plan outdated, which is why a one-size-fits-all will isn't enough. In this article, we'll take a closer look at the backbone of any good plan — your will.

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What is a will?

A will is a legal document that instructs your personal representative (also known as an executor) on how your affairs should be handled upon your passing.

It can be as simple as directing where certain assets should go or more involved, such as nominating a conservator and guardian for your minor children and holding assets in trust for their benefit.

What does your will distribute?

A will distributes your probate assets — items you own in your name alone, with no beneficiary designated. Common examples include a vehicle, personal property or a bank account without a pay-on-death or transfer-on-death designation.

Assets with beneficiary designations — such as checking accounts, savings accounts, brokerage accounts, retirement accounts and insurance policies — pass outside of your will.

If you've ever named a beneficiary for one of these accounts, congratulations: You are an estate planner.

Assets such as checking and savings accounts, CDs and brokerage accounts that are held jointly in your name with another person will, in most cases, pass as a matter of law to the surviving joint owner without being subject to your will.

How does a will distribute your assets?

Let's look at a basic example. John Smith has one checking account with $10,000, one savings account with $5,000, one car and one house. He names his two adult children, Susan and Mark, as beneficiaries on the checking account. His will states that the car should go to Mark, the house to Susan, and everything else should be split equally.

When John passes away, his checking account bypasses the will because he completed the beneficiary designation. Those funds will pass equally to Susan and Mark.

His probate assets — the savings account, car and house — will be distributed according to his will. That means Mark will receive the car and $2,500 from the savings account. Similarly, Susan will receive $2,500 from the savings account and the house.

The total assets distributed to Mark will include $5,000 from the checking account, the car and $2,500 from the savings account. The total assets being distributed to Susan will include $5,000 from the checking account, the house and $2,500 from the savings account.

What happens if you don't have a will?

If you die without a will, you're considered to have died intestate, in which case, state laws determine who gets your assets.

Statutes vary from state to state, but most consider several factors, such as whether you were married, had children, if your spouse was also the parent of your children or if you have living parents or siblings.

If no close family members are found, the law might consider distant cousins.

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Dying without a will could not only make your assets go to people you never intended to benefit, but it will also make settling your estate more time-consuming and costly.

For example, both John Denver and Prince died intestate. Denver's estate took six years to settle. Prince's took just as long, draining tens of millions of dollars from the singer's $156 million estate.

Having a will allows you to direct who receives your assets in a timely, cost-efficient manner.

Who is in charge of making sure your will is probated?

Your will names a personal representative — or executor — to manage your estate. This person acts as a fiduciary and is in charge of identifying assets of the estate, paying any valid creditor claims, filing any tax returns (income or estate) that might be required and carrying out tasks related to the administration of the estate, including distributing probate assets according to the terms of the will.

Your choice of personal representative might change over time. Younger individuals typically name a parent, spouse or another close relative or friend. Older individuals typically name a spouse, child or sibling.

The key is to choose someone you trust to carry out your wishes and to revisit your choices periodically. I always recommend choosing an alternate to serve as a personal representative if the primary choice is unable to serve for any reason (for example, incapacity, death or refusal).

If these roles aren't filled, additional time will be required to find someone to be appointed to these positions, and with additional time comes additional legal fees.

You can also nominate a guardian and conservator for your minor children. They would raise your children and manage their finances, respectively, if you were to pass away while they're still minors.

Anyone can serve in either of these roles; however, it's important to have a conversation with any individual nominated. I always suggest that you name an alternate choice in case your first choice is unavailable.

How you can prepare

With the introduction of artificial intelligence and several online platforms, many people wonder if they even need an estate planning attorney. The answer is an unequivocal yes.

Online estate planning services are growing in popularity due to their low cost and convenience. However, wills are technical documents, and specific statutory and legal requirements must be met to be valid and enforceable.

Working with an attorney who is licensed in your state might cost more upfront, but it ensures that your will is legally sound and enforceable.

There are several resources to help you find an attorney. Call your city, county and state bar associations, and they can provide you with a list of attorneys who focus on estate planning.

Additionally, if you have a financial adviser, either independently or through your place of employment, they might recommend an estate planning attorney who can assist you.

Lastly, many community centers, senior centers and local nonprofit organizations will have estate planning presentations and seminars, typically open to the public and often free of charge.

This affords you the opportunity to learn more about estate planning while meeting an estate planning attorney who might be able to help you.

Before your first meeting

Once you've chosen an estate planning attorney, here are some things to consider before your first meeting:

Compile a list of your assets, both tangible and intangible.

If you have assets that allow for beneficiary designations, confirm what the current beneficiary designations are.

Think about whom you would like to serve as your personal representative and guardian/conservator of your minor children. Have a conversation with them to make sure they're willing to serve in such a capacity.

Think about how you'd like your assets distributed upon your passing and how you'd like those assets distributed if your first choice is not available.

Think about any charitable distributions you might like to make. Generally, we recommend these distributions be made with a beneficiary designation, but many individuals prefer to include charitable distributions in their wills.

If you have prior estate planning documents, think about how you'd like those to change when compared with your new estate planning documents. Bring those documents so your attorney can review them and let you know if they need to be modified or revoked.

Are you a beneficiary of another person's estate plan, for example, the beneficiary of a parent's or grandparent's trust? If so, let your attorney know, as this might affect how you structure your own estate plan.

In conclusion

With this information, you and your estate planning attorney can build a plan that accomplishes your goals, as well as let you know about any potential issues that could arise.

Taking the time to make the proper arrangements now — and making timely updates when life brings you one of the five D's — will give you the peace of mind that comes with knowing your wishes will be honored and your legacy preserved.

Related Content

• I'm an Estate Planning Attorney: These Are the Two Legal Documents Everyone Should Have
• How to Choose Your Trustee or Executor of Your Will
• Probate: The Terrible, Horrible, No Good, Very Bad Side of Estate Planning
• Wills Gone Wild: How to Avoid Estate Planning Disasters
• 10 Good Reasons to Revisit Your Will