What is a Will?
A Last Will and Testament, also referred to simply as a Will, is a legal document that allows a person to decide who will receive their property after their death. If someone dies without a Will (or any other estate planning completed), the law steps in to decide who receives the deceased person's property. Unfortunately, this can cause a myriad of problems. For example, the property might all go to a child with large creditor problems, thereby putting at risk everything that you have worked for over your lifetime. Even if there isn't a concern about creditors, letting the property go to the wrong person could risk causing them to be kicked off of public benefit programs such as Medicaid. Suffice it to say, it is much better to have an estate plan that allows for your assets to be directed to the individuals you want to receive them. A Will is one way you can accomplish that.
Is Making a Will Complicated?
There are certain legal formalities that must be followed carefully when a Will is made and executed, but making the process of making a Will itself doesn't have to be very complicated. However, that doesn't mean that you should try to make a Will on your own. Many online websites and even office supply stores have simple Will kits that you can purchase cheaply and complete at home. However, it is important to seek competent legal counsel to help you understand the impact that a Will can have and how to protect your estate against those risks. If you ask many probate lawyers, they might admit that they love when people do their own Wills. The reason? The lawyer makes far more money probating the Will than they would have if the Will had been properly written in the first place.
The simple Will kits you can find in an office supply store are inappropriate for almost every case. Usually, those kits leave out very important provisions. However, they may be too complex for some other cases and force the family to go through an expensive and time-consuming probate process that could have been completely avoided. It is far better to invest in a comprehensive estate plan rather than subject your family to tens of thousands of dollars in unnecessary probate fees if the document isn't right.
What Are the Parts of a Will?
A Will can range from the simple to the complex. Typically, a Will lists your family members and other individuals you wish to leave your estate to (you can even provide for your pet in some states). Provisions can also be inserted to disinherit someone. The Will also lists specific gifts you want to give to individuals (or charities). Sometimes, you may want to leave those gifts to people in a way to protect them such as leaving it in a general needs trust or a special needs trust. There are specific benefits and drawbacks to both giving gifts outright and to giving gifts in a trust (whether it is a general or special needs trust). Those can be explained further in a consultation. More complicated provisions can be added depending on your desires (such as a charitable foundation). A well drafted Will also provides for what happens in the event that the person (or charity) you want to leave a gift to died before you (or no longer exists). The Will should also provide for what happens to your residual estate (everything left over after the specific gifts). Provisions for the disposition of the residual estate can be simple or complex depending on who will receive the property, if you want to attach conditions to the beneficiary, whether any beneficiaries have special needs, etc. It is common practice to include a provision for what happens in the event that none of those you want to inherit survive, which is known as a Remote Contingent Distribution clause.
Frequently, the Will provides for disposition of personal property by written memorandum, but sometimes this is not an appropriate provision. If you are married (or anticipate being married in the future), the Will should also have provisions regarding what is known as the marital share.
The Will should also address the administrative questions of who is in charge of your estate upon your death. So, the Will commonly nominates a Personal Representative (also known as an Executor or Executrix in some places). You can nominate more than one (but, you should talk to an attorney about the pros and cons of doing so) or list alternates. Most important of all if you have minor children, the Will can be used to nominate a guardian for the children in the event of your untimely death. Other administrative provisions can include how trustees (if applicable) get replaced, provisions regarding a rule against perpetual trusts (this is a concept that strikes fear into the heart of most law students and even many practicing attorneys who do not work frequently in this area, and it is best explained in a consultation if it is applicable), provisions authorizing information probate proceedings (depending on your circumstances), and general definitions.
The above listing is not exhaustive, but hopefully it gives you an idea of why it is important to use a qualified estate planning attorney. Beyond just a Will, our comprehensive estate plans include the following documents:
- A Durable Financial Power of Attorney
- A Medical Power of Attorney
- A HIPAA Authorization
- An Advanced Health Care Directive (this is different from a DNR)
- A final wishes memorandum
How Much Does It Cost
How much a plan from my office costs depends on many factors. However, you can rest assured that before we begin work on any estate plan, you will be provided a final flat fee cost. Since my office uses flat fee agreements for almost all estate plans, you will know exactly what the cost is going to be before you commit and you don't have to worry about surprise changes. Most of our plans end up being about $1,500 for a single individual or $2,000 for a married couple.
The first thing that is important to realize is that our office engages in comprehensive planning. This means that you are not simply getting a Will. Rather, you are getting a set of documents that work together to decide both what happens upon your death and what happens in the event of your incapacity. Some of the factors that we look at when pricing an estate plan are:
- Whether you are choosing to use a Last Will and Testament, a Revocable Living Trust, or something else as the primary document in your plan.
- The level of planning you select (for example, do you want to create a pet trust or do you want to keep things as simple as possible).
- The number of specific gifts (and any provisions related to those gifts) and residuary beneficiaries.
- Any specialized language such as a standby special needs trust in the document.
- Provisions related to the management of inheritance for certain beneficiaries (for example, special provisions appointing an individual to manage the inheritance for a minor).
- What level of tax planning needs to be accomplished.
- The number of properties that a deed may need prepared for.