Brian S. Cantor, Attorney-At-Law’s Basic Estate Planning
For purposes of this article I have assumed that the person or couple has a small estate not subject to state or federal death taxes.
Half of all people that die, do so without a will. It is not the cost of writing a will but rather the thought of the inescapable event that causes the avoidance. The single most demonstration of your love for your family is writing your will and deciding on whether you want to remain on a respirator or other extraordinary means if you are in a terminal condition (living will).
By drafting the appropriate estate planning documents you are naming competent executors, trustees and guardians. You are making sure that your love one’s receive your assets in the share that you want.
Remember, you are under no legal obligation to prepare a will. The State of Connecticut has by statute directed how your assets will be split when you die without a will. It is called intestacy. Under some circumstances, a married person’s parents not their spouse would receive assets after a certain basic amount was provided for their surviving spouse. The statute for most people does not meet their wishes. Moreover, minor children without a testamentary trust would receive all the money they inherit at age twenty-one. That may be more money than they can handle at one time. Most parents would rather see their children receive what they need for health and education in their usual standard of living, with staggered distributions, as they get older.
Before writing a will you will need to do your homework. You will need to elect an executor. An executor will be responsible for hiring an attorney, admitting the will to probate court and signing all legal documents and checks for the estate.
You will need to select a guardian if you have children. If necessary to set up a trust within the will for your children, a testamentary trust, you will need to select a trustee.
The guardian is someone who will be good with your children. Usually the first choice is your spouse. You will need to select an alternate in case your spouse does not survive or cannot serve. The trustee is someone who can handle finances. The guardian and trustee can be the same person(s) or can be different people. Having the same person wear two hats can be convenient. It can also lack checks and balances. For example, if the guardian has their own children and a computer is bought. Who uses the computer? Is it just for your child or the entire family? Should all the money come from your child’s trust, a partial contribution or none? Also, sometimes the guardian who feels overwhelmed and unappreciated, they may help themselves to some of the funds feeling that they are entitled. Only you after careful consideration can make the decisions as to whom you wish to have as a trustee or guardian if this applies.
You will also need to know if the person you leave the money to predeceases you, do the proceeds go to their heirs, or are the assets redistributed to the survivors?
This is an appropriate time to see if and whom you have named as your beneficiaries on life insurance policies and pensions. Remember, pensions and life insurance if beneficiaries are named pass outside of your estate. Likewise if a bank account is held in survivorship, it passes to the other party named on the account outside of probate. Probate can only pass title to assets held solely in your name or not in survivorship.