Your estate plan: What’s the role of your Will?

Brittany M. Midgette Wealth Planning

Planning for your own death may feel like an uncomfortable topic, but understanding how your assets will transfer is key to ensuring your financial wishes are fulfilled after your death. With some careful planning, you can ensure that all of your estate is distributed how you would prefer. It is important to broadly consider your financial picture and your desires after your death to ensure you have created a comprehensive estate plan, and not just executed a Will.

The Last Will and Testament (or simply, the Will) is perhaps the best known of all estate planning documents. Your Will is a legal document that describes who receives certain types of property at your death and also gives you the opportunity to appoint individuals to serve in different roles at your death. Your Will may not control all of your assets.

What estate roles are appointed in your Will?

Creating a Last Will and Testament gives you the opportunity to appoint a personal representative or executor. A personal representative is the person(s) you want to be in charge of managing or settling your estate.

Another very important aspect of a Will is that it gives you the power to appoint a guardian for your minor children in the event that you die while they are still young.

What property is controlled by your Will?

Your Will controls all of your probate property. Probate property includes property of any type that is owned individually: jewelry, automobiles, and investment accounts, or even certain types of jointly-owned property including real estate or partnerships.

What property is not controlled by your Will?

Your Will does not control any assets that transfer ownership based on the language used to title ownership. For example, retirement accounts such as 401(k) or IRAs, life insurance policies, and annuities allow you to name beneficiaries of the accounts that determine how the assets will transfer without regard to your Will.

Additionally, property that is titled joint tenancy with rights of survivorship is transferred without regard to your Will. You can title land, residences, or bank accounts jointly with rights of survivorship to allow for this transfer. It is important to review and understand how property is titled because certain types of property ownership are still subject to the terms of your Will. For example, property titled as tenants in common will flow according to the terms of your Will. If you are curious about the ownership of property, a lawyer can review your deeds to provide clarity regarding the type of ownership.

If you have a revocable trust, any property owned by the trust will follow the trust document when distributing assets at your death.

Any assets not controlled by your Will are considered non-probate assets. Avoiding the probate process has some advantages: the details of your estate remain private, sometimes the distributions of your estate are quicker, and, depending upon the probate fees in your state, it could save money.

How to make changes to my current plan and/or Will?

Most people will need to tweak their estate plan several times. Whenever there is a life-changing event such as the birth of children, divorce, or the death of a spouse, you will want to revisit your plan to make necessary changes. To change the beneficiary designations or ownership of accounts, you will need to complete a change form with the account custodian. To change specific language in your Will, you will need to work with an estate attorney to update your Will with a codicil, which modifies or revokes your original document. It is also a smart idea to have your Will reference a personal memorandum which outlines where personal property will go at death. The personal memorandum can be updated as often as you wish without using an attorney and will allow you to easily change your plan for transferring personal property.

Creating an estate plan to ensure your wishes are met and your loved ones have the guidance they need to administer your estate properly has many facets. If your Will is the only document you have as an estate plan, you may not have included the full picture of what could happen at your death. Share your financial information with your estate attorney to confirm that your plan encompasses not only your Will but also estate documents, beneficiary designations, and property titling.

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