03 Nov 2022 When There’s a Will, There’s Your Way

As I write, my college friends are scheming about how, when, and where to go see Taylor Swift in concert on her newly announced tour. We have some strong wills, pent up desire from a concert-less past few years, and I have no doubts that we will find a way to attend. We have a lot of factors to navigate – coordinating dates for multiple people, traveling from different cities, limits on number of tickets purchased at one time, national demand – but our will is there and that’s what matters!

When it comes to our deepest desires, including trivial important ones like Taylor Swift concert tickets, our creative minds usually come to life as we search for a path to the desired outcome. But often when it comes to a need like long-term estate planning, the potential complexity and the “it’s not fun to think about” nature of planning for one’s incapacity or death, many of us put off thinking or coming up with a plan to put something on paper that gives official and legal direction to our loved ones after we’re gone.

Wesley and I are in the process of getting our official estate planning documents in place, which is something that’s been on my to-do list since we got married in 2017. Yes – financial planners procrastinate, too! We enrolled in Wesley’s employer’s legal benefit for 2022 to use that resource to finally knock off this task, and it’s now November and we’re finally about to sign our documents. At Beacon, we often serve as accountability partners for our clients to get this done and clearly I needed external support!

Although it does sound like a daunting task, and family structure and dynamics definitely can make this a tougher decision, putting something down on official documents is much better than the alternative. You can always continue thinking about the structure, named individuals, terms, and amend your documents later, but something in a will is better than no will! Hence, when there is a will, there’s your way, versus when there isn’t a will, there’s a way – it’s just the state’s way.

The purposes of a will include formally providing instructions about the division of one’s property after death, stating who will handle your affairs after death, and designating who will care for your minor children.

The general people you’ll want to consider when creating your will include: 

• Personal Representative or Executor/Executrix: If married, this is usually your spouse. Then you’ll name an alternative executor. The role of this person is to submit the will to probate, gather property of the estate, pay debts and obligations of the estate, and handle the general administration of the estate. 
• Guardian: This is who you’d desire to become the legal guardian of your minor children, should you and your spouse die while children are minors. This person provides parental type supervision and financial security. The court gives the greatest weight to the person named in the parents’ last will and testament when they order the appointment of a guardian. You can list successor options in case someone can’t or is unwilling, so that the court has as much input from you as possible about the way you’d want things to happen. 
• Beneficiaries: Who receives property? Do you need restrictions put in place? If the beneficiaries are minors, you may want to consider creating a trust. 
• Trustee: Someone who has legal authority over assets in a trust. In the case of a trust for minor children, sometimes you want this to be the same as a guardian, and sometimes it may make sense to include another individual.

Some initial questions to think about as you’re considering who to name: 

• What are the caretaking abilities of the guardian? What about the financial habits of a potential trustee?
• Would my kids have to change schools or districts under the named guardians? 
• What is the age and health of your guardian? What will their age be when your child turns 18? 
• Are there family dynamics to consider? For example, if you choose a sibling, would his/her spouse be unwilling? 

It’s also recommended to ask whether someone is okay being named in your will so they aren’t taken by surprise one day. 

When someone dies without a will, state intestate laws set forth how guardians are named and property is distributed. These intestate laws are based on general public policy (that a surviving spouse and descendants should be cared for first) and a distribution method that the average person would have chosen. However, especially when there are family dynamics and complexities in play, the state’s structure may not at ALL align with anything close to your wishes! Without a will, there is little flexibility for any estate tax planning or deviating from the set percentages and structure of the state’s distribution method. And for those with minor children, if there isn’t a will, then a judge gathers information about the children, the family, and tries to make a good decision for the children. Assets may be held in a guardianship account and the guardian has to report to the court on how funds are used – plus there’s always fees involved.

As evidenced by my own experience in putting an official plan in place, we completely understand that this can be a difficult task to tackle. It can be complex and filled with legal jargon. There are different approaches that may make sense for one family but not another. Even within our office, our estate documents are structured differently. Ryan wrote a few years ago about the use of a trust in estate planning, if you’d like to read more on that.

Also, if you’re curious about the process for enrolling in an employer’s legal benefit, here’s a little summary of how that worked. Although, obviously legal benefit plans will differ from one to the next.

We selected the type of legal service we needed – wills & estates. From there, we selected which services we needed, which was document preparation. We had the option of getting connected to a local attorney that is on our provider’s approved list, or choosing an online service. I was curious about the local options, so I picked a firm and reached out to an attorney on the list. The legal benefit website provided us with claim numbers for the attorney to file with the benefit provider. I don’t expect to have any additional financial responsibility on our end aside from what we’ve paid for the benefit via payroll deductions during 2022.

Many companies are in their open enrollment periods so if you either a., don’t have estate documents in place, or b., need to have yours reviewed or amended, I’d look into a legal benefit if one is offered to you or your spouse. You’ll want to compare the cost of the benefit to potential services needed. And if you don’t have access to that benefit, we have several attorneys that have worked with many of our clients and also know of additional resources. We often are accountability partners to help get this done and sit in meetings with attorneys to help listen and navigate the process with you.

In summary, even Taylor Swift wrote briefly about estate planning in one of her latest songs and described potential heirs being disappointed at a will reading. This is a topic that reaches all of us, even Taylor, and most of us don’t enjoy thinking about mortality. We’d love to help if you’d like to discuss in more detail.