Part 3 in our continuing series on the viral social media post
by Jennifer Tomac
As an estate planning attorney, the number one question I get asked is how much does it cost for you to draw up a “simply Will.” I always struggle to answer this question. Not because it’s a difficult question to answer, but because of the unspoken suggestion that lies behind it. What people are really saying is – “I believe that a 'simple Will' is all I need in order to get all my stuff to my spouse/kids when I die, and I don’t think that it should cost very much for you to prepare that document.”
In reality, every person over the age of 18 does need a Will, but they also need more than that. They need to really, truly understand how a Will works, what it can accomplish, and what it can’t accomplish.
First things first – A Will does not take effect until the person who signed it passes away. And, a Will does not take effect until a court says that it does. A Will does not avoid probate. A Will must go through probate to take effect. So, if your Will says that your daughter inherits your bank account, your daughter does not have access to the money in that account until 1) you are dead; 2) she has hired an attorney to file a petition with the court to probate your Will; and 3) a court has examined your Will, found it to be valid, and issued letters of qualification to the person you named as Personal Representative/Executor. This can result in a significant amount of time between your death and when your family has access to your assets.
Secondly, a Will does not control what happens to everything you own. I want you to take a moment and think about all the different types of things a person can own, such as
CD (Certificate of Deposit)
Retirement Account (401K, IRA, Roth IRA, TSP)
Life Insurance (Whole, Term, Hybrid)
Business (LLC, Corporation, Sole Proprietorship, Partnership)
What happens to all of these different types of assets when you pass away depends on a lot more than what your Will says. It depends on whether you own the asset jointly with another person or persons. It depends on whether you have named a beneficiary on the asset. It depends on whether you or your spouse were in a nursing home before you passed away.
While a Will is important, it is not the be all, end all. Relying on a Will can result in unnecessary expenses and delays for your family. Also – and I cannot emphasize this enough – every person is different, every family is different, and, therefore, the “right” estate plan for every person is different. In some states and for some people, a Will may be the right answer. But, the reality is that for a lot of people, a Will simply isn’t enough. Estate planning is not the place to cut corners and look for shortcuts. Doing it wrong can cost your family a lot of money and cause them a great deal of heartache. It is vitally important that you talk with a professional who can evaluate the types of assets you own, your goals, and your family situation and advise you on the creation of an estate plan that will truly work for you and your family.