The recent pandemic has given people more reason than ever to consider what will happen after they die. So naturally, what often comes to mind first is the need for a will, which is great. A will is definitely an essential piece of the estate planning puzzle. However, it is not the only piece.
What you might not realize is that a will, though necessary, doesn't cover all of your end-of-life decisions. Many “who gets what” decisions, for example, can fall outside a will's scope, meaning your assets might not go to the people you intend after you die. Also, a will doesn't cover end-of-life decisions concerning your health care.
Suffice it to say that you can't depend on a will alone to cover all of your estate planning needs. Before drafting a will, this is what you need to consider.
Many assets can pass outside a will.
There are many assets that, upon death, can pass outside a will. It means the designations you make on certain accounts will override what your will states no matter how explicit the instructions in your will are. Retirement plans, for instance, typically allow the owner to name a beneficiary or numerous beneficiaries the asset will pass to in the event the owner dies. The beneficiaries can conflict with those named in your will. Regardless, the beneficiaries named on the plan will prevail, and the retirement account will not be subject to the decedent's last wishes.
The same holds for a bank account where an owner sets it up to be payable on death (POD) to a beneficiary. The beneficiary will become the account owner upon death, irrespective of what the decedent's will states. As for real property such as a home, people, especially spouses, often own these assets as joint tenants with rights of survivorship. When one of the joint tenants dies, full ownership passes immediately to the other owner wholly, outside the decedent's will. Life insurance policies are yet another example of what can pass outside a will.
So how does this look in real life? Picture you are remarried, and you bequeath your entire estate in your will to your new spouse. However, when you got married, you neglected to change the beneficiary designation on your 401(k) and life insurance policy, both of which named your first spouse. Despite what your will says and your intentions when you wrote it, even if you executed your will after making those beneficiary designations on your 401(k) and life insurance policy, the assets will still pass outside the will to your first spouse.
The best way to avoid such a situation is to review your beneficiary designations regularly and update them if you have recently experienced a life passage, such as a marriage or divorce. The bottom line is your will won't trump an asset with beneficiary designations.
To help with your review, here is a quick list of assets that can pass outside a will:
- Joint tenancy with rights of survivorship
- Retirement plan such as a 401(k) or IRA
- Life insurance policy
- POD bank account (payable on death)
- TOD investment account (transfer on death)
- Revocable trust
Think carefully before choosing an executor for your will.
When drafting your will, your estate planning lawyer will ask you to choose an executor. An executor is the personal representative of your will. The individual you name is the one charged with carrying out your last wishes, whether they concern your burial instructions, disposition of your assets, or finding a home for your pet. Your wishes can range from the simple to the obscure.
Therefore, the position of executor is an important one. A will's executor holds a lot of responsibility and has a lot of control, including the potential to make life difficult for your survivors if they don't get along with them. So, when picking an executor for your will, consider a person who is both organized and gets along with the people you care about because they will need to interact once you are gone.
Don't forget about the other important estate planning documents.
Well-conceived estate plans include two advanced directives. The first is a living will, and the second is a durable power of attorney for health care, also called a medical power of attorney.
A living will set forth your medical wishes in the event you become unable to communicate them yourself. A durable power of attorney for health care allows you to name a health care proxy. A health care proxy will make any medical decisions not covered in the living will on your behalf, including end-of-life decisions.
A financial power of attorney allows one individual to grant another named individual access to any accounts or assets in their name and act in their place. A durable financial power of attorney stays in effect after a person becomes incapacitated.
The individuals you name in either a financial power of attorney or medical power of attorney or in a health care proxy should be people you would trust with your life. There may come a time when you actually have to.
Consult with a Seattle estate planning lawyer to assist with drafting your will.
A will is an essential part of estate planning and perhaps the most well-known. But, as we have discussed, it is not the only part. Given the impact your incapacity or death could have on the disposition of your estate and on the lives of your loved ones who survive you, it is vital to have a living will, health care proxy, and powers of attorney as well.
Though many online services are available to help draft these documents, these services often don't consider local state laws. Not to mention, you will not have the expertise of a skilled estate planning attorney advocating on your behalf to guide you. Washington State estate planning laws can be confusing, which is why you want to have a knowledgeable estate planning lawyer by your side who can explain why you are taking steps to protect yourself and your loved ones.
At Elise Buie Family Law Group, our empathetic Seattle estate planning lawyers appreciate how confusing estate planning can be, especially if you are going through or have recently gone through a divorce. Our estate planning team also recognizes that thinking about what happens after you die can be unpleasant, which is why we make the estate planning process as seamless as possible. We are here to listen and help. Call us today.
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