A will lets you distribute your assets, name a guardian for minor children and name an executor to carry out your wishes when you die.
The Chicago Sun-Times’ recent article entitled “Estate planning: When a will won’t work” says that you should know what a will can’t or shouldn’t do, especially if you’re writing your own without a lawyer, or you could unknowingly make a mistake that ruins your estate plan.
A will can’t avoid probate, and your will becomes a public record. However, a frequently used method to bypass probate is to create a revocable living trust, and transfer ownership of your assets into the trust. You retain control, but after you die, your successor trustee can distribute your property without a court’s involvement.
Jointly-held property also passes directly to the other owner, and accounts with beneficiaries (life insurance and retirement funds) also avoid probate. Another option is to use “transfer on death” or “payable on death” documents to designate beneficiaries for other financial accounts.
You might think that a will is a way to make people to do what you want. For instance, you could leave your son a bequest that he gets only if he finally finishes college. However, putting conditions in a will may not work well. Some conditions aren’t legally enforceable or are simply too burdensome to enforce.
If you want to impose conditions, ask an experienced estate planning attorney to create a trust. You might also use a trust is when you want to leave money to someone with special needs who is getting government benefits. That’s because a bequest could disqualify them from essential benefits, such as Supplemental Security Income and health insurance coverage through Medicaid.
Technically you can disinherit your spouse in your will. However, disinheriting a spouse can be extremely hard to do. That’s because the state has a mechanism that protects a spouse from being completely disinherited. In many states, a spouse has a right to claim one third to one half of the estate, regardless of what a will states.
However, a spouse can agree to be disinherited in a prenuptial or postnuptial agreement or can “disclaim” or refuse an inheritance, so that it goes to other heirs.
One of the main goals of our law practice is to help families like your plan for safe, problem free, and successful transfer of assets to the next generation. Call our office today to schedule a time for us to review your estate plan and identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.
Reference: Chicago Sun-Times (Nov. 18, 2021) “Estate planning: When a will won’t work”