Like most legal documents, there is a lot to consider and keep in mind when finalizing your last will and testament. While a ‘last will’ doesn’t have to be your last piece of estate planning – you can amend and invalidate your will, if you so choose – the logistics around drafting and setting up a will require one to be thorough when discussing any and all relevant details.
As such, you want to make sure you are not missing anything. In the interest of helping anyone potentially considering planning for the future, we compiled several simple questions to help touch on some issues that might not necessarily spring to mind for most laypersons when drafting up a last will and testament.
Naturally, these only scratch the surface. A last will and testament can be an incredibly comprehensive document and should always be written with the help and expertise of a legal professional. Do not rely solely on online guides and templates to write your own will – but do take the time to learn more about what does and does not go into a last will and testament. Here are a couple examples:
1. Who Will Be Your Children’s Guardian?
If a parent is going to prioritize anything, then it would be their children. Young parents must ask themselves how they are going to care for their children after they are gone, especially if they happen to leave somewhat unexpectedly. Life is unfortunately quite unpredictable, often disastrously so, and accidents can happen. If you are drafting a will and have any minor-aged children, it is important to consider who you would trust to be named a guardian to your children. Until your children are 18, they need to be represented by a legal guardian of age.
This is extremely important, as it will save your children much anguish and emotional discomfort. The loss of a parent can be unbearably painful – compounding it with uncertainties about the future, or the potential of landing in an unloving home, is simply cruel. It is also smart to consider naming a backup guardian just in case something happens to your first pick.
Be sure to pick guardians who are US citizens and reside in the US. It is much tougher to send your child to a guardian who lives abroad. That being said, if the rest of your family is not in the US and you insist on ensuring that your child is taken care of by your family, then it may still be a good idea to assign a temporary guardian who can take care of your child until it is time to emigrate to your country of choice.
2. Will, Trust, or Last Will and Testament?
A last will and testament is a very powerful estate planning tool, but it has its limitations. Meanwhile, a living trust can be a supplementary estate planning tool to replace much of what a last will and testament does, with certain irreplaceable exceptions. The question becomes: is your estate small enough to largely bypass the hardships of the probate process?
Probate in California can be complicated to the say the least, and even modest estates should consider looking for ways to avoid having to pass their wealth through the probate process. A living trust is a good way to do so, allowing you to pass assets and property off to the next generation indirectly by way of a trust, rather than directly through a will. It is important to consult your estate planning professional and consider the pros and cons of each. Which fits your needs best? Only a closer look will tell. Even then, incorporating elements of both is neither extremely pricey, nor impractical.
3. Who Will Handle Your Estate?
While much of the estate planning process involves putting in the legwork and filing the appropriate paperwork while you are still alive and lucid, estate planning is ultimately the process of ensuring that your financial legacy is taken care of properly when you pass away. This requires a human element to oversee and execute the plan you laid in place.
Choosing an executor or estate representative is incredibly important. It does not have to be a professional, and oftentimes, it has recommended to look for people you trust personally to properly handle your finances and ensure that your beneficiaries receive what is rightfully theirs.
4. How Do You Want to Be Treated After Death?
Unless specified otherwise, it has going to be up to your family how and where you will be buried, cremated, or otherwise honored after death. But if you already have a specific idea of how you want your body to be handled after death, it is a good idea to take note of that in a last will and testament.
Such requests can only be added to a last will and document, rather than a trust. If you do not have any specific wishes for how you wish to be treated after death, you can leave that up to your family to decide.
5. How Would You Prioritize Your Distributions?
When writing your last will and testament, you have the option to structure the document in such a way that it is clear which sums, assets and properties are to be awarded to which beneficiaries, first and foremost. While some of your estate may be used to settle outstanding costs and debts, or to cover certain taxes, the rest will be distributed between the beneficiaries you listed for your existing wealth.
If you’re worried that you may not have enough to cover the sums you originally dictate in your will by the time you pass away, you can word your will such that you ensure there is enough for everyone – for example, instead of a fixed sum, note that you’re distributing “the lesser of $_____.00, or 20 percent of my net estate”.
6. What About Your Remainder?
A last will and testament is mostly used to define how much of what in your estate goes to whom, but it’s notoriously difficult to pinpoint how much value your estate will have the moment you pass away.
If there happens to be a remainder left after all distributions have been made, consider what you want to do with the remainder. You may choose to include a clause to distribute the rest among your kin, your spouse, or to specific organizations and charities.
7. What If a Beneficiary Predeceases You?
It is a good idea to write your will in such a way that EVERY distribution you have has an appropriate backup plan. Sometimes, the person you wish to give money or property to cannot accept it for tax reasons or personal reasons, or they may pass away before you do. On top of clarifying who else might be eligible for that specific distribution, one option is to leave the distribution to your beneficiary, adding the stipulation “per stirpes”.
Per stirpes is Latin for “by branch” and is used as a legal term to clarify that if the beneficiary is unavailable, the amount or distribution will pass on in equal share to their representatives, usually the next of kin.
Under this stipulation, if you decide to give 20 percent of your estate to your brother, but he passes away leaving behind two children, then they each receive 10 percent of your estate.
Estate planning can be complex, and the slightest mistake can cost your kin a world of headaches and legal trouble. It’s best to go over estate planning matters with a professional, and avoid unnecessary costs by being concise and comprehensive with your legal documents.