Financial experts often say that if you die without a last will and testament, the state will decide who gets your assets. That statement is true if you die owning assets without joint owners and without naming beneficiaries of bank accounts, insurance policies, retirement plans, or other assets. However, very few people die without making some of those kinds of arrangements. Also, if you want your spouse, children, and grandchildren to receive your assets, state law already does that. Plus, if you are married and you share ownership of everything with your spouse, the surviving spouse will end up with all of the assets. So why do you need a will?
The problem with this whole discussion is that the "experts" and the public are focusing on the wrong questions. The questions should not be, "Do I need a will?" or "Why do I need a will?" The proper questions should be, "What do I want to happen when I die?" and "What estate plan documents will help satisfy my wishes?"
You may think that the question of what should happen when you die would have a simple answer. Think again. In fact, think about these issues and how you would respond to them:
If my spouse ends up with Alzheimer's in a nursing home after I die, do I want my spouse's nursing home expenses to devour all of our assets?
If I am in a nursing home after my spouse's death, do I want my nursing home expenses to devour all of our assets?
If any of my family members suffer from disabling injuries or illnesses, will an unrestricted inheritance help or hurt their qualification for Medicaid or other financial assistance?
Do I want to leave certain assets to certain people?
Do I have reasons to limit who inherits from me, or when and how they would inherit?
If for some reason, my adult heirs would die before inheriting for me, how old should their children be before inheriting from me?
What part of my assets could I use to help my church, a local school, or a community organization after my death?
If I own property in more than one county or state, how much trouble must my family overcome to receive my assets?
Most people never think of all of those questions. If any of those questions made you think of things that you would want to happen or avoid, an ordinary last will and testament may fail to satisfy your wishes.
If you are married and you have concerns about nursing home care, you may need a will with special trust language to protect assets for your spouse. This issue requires the expertise of an elder law attorney. Perhaps 1 lawyer out of 120 lawyers understands the legal issues adequately to address such concerns because nursing home laws change constantly.
If you have special preferences about who gets your assets and how they receive them, your will should spell out those preferences. State laws limit some of the things that you can do with a will, so it is important to make sure that you hire an experienced estate and trust lawyer who knows how to deal with those limits.
If you have never thought about leaving assets in your estate plan to churches, schools, and other community organizations, you can find more information about that idea in our previous article entitled "helping ourselves" (available online at: http://hawkinslaw.com/helping-ourselves/). It would amaze most people how helpful even a small amount of estate planning generosity can help such groups in their own hometowns.
If you own property in more than one county or state, even an ordinary last will and testament will not simplify your family's ability to manage the property after you die. If you think that opening an estate may be a problem, imagine the burden of dealing with estate matters in every county or state where your property is located. Sophisticated planning with specialized wills, trusts, and other estate planning devices can minimize such estate administration headaches.
Estate planning is a complicated art form that attorneys have refined for centuries. Choosing a skilled attorney is the most important estate plan decision. Choose well and ask the right questions.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and Jeff is a Fellow of the American College of Trust and Estate Counsel. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator and the 2014-15 President of the Indiana State Bar Association.
Find more about these and other topics at www.HawkinsLaw.com, like us on Facebook, follow Jeff Hawkins on Twitter @HawkinsLawPC or call us at 812-268-8777. © Copyright 2015 Hawkins Law PC. All rights reserved.