Sometimes it’s hard to see the forest through the trees. This is as true for sophisticated estate planning as it is for anything else. It’s worthwhile then to step back and consider not the sophisticated, but the mundane instead.
Most Americans don’t have a basic will (or any will for that matter).
What should the document that conveys all your most precious possessions look like and what should it say? Though a will can be as varied as imaginable (note: I had one particular client clearly remind me of this fact when he said that it was called his “will” because he can do whatever he wants).
Still, most wills end up looking surprisingly similar. And though it can be complex, most people prefer simple wills.
Let’s imagine you are married with kids. And, for the sake of convenience, let’s imagine that all the children are the natural or adopted children from this relationship or that husband and wife have decided to treat the stepchildren as if they were their own natural children. That gives us one spouse and the assumption that all children are treated as your natural (or adopted) children.
Given these inputs, what does the will likely look like? Every person typically has his or her own will. So, each husband and wife will have a will. The will can be very long or very short. But, the prototypical will is probably around four to six pages in length. It must be signed by the person making the will (i.e., the testator). Additionally, two adults who are inheriting nothing from the testator must sign as witnesses. Finally, it is common to have the witnesses’ signatures notarized as part of a “self-proving affidavit” which serves to prove the authenticity of the will.
Who gets to inherit first? Usually, a married person will name his or her spouse to inherit the assets. This is important because, even though Washington is a community property state, it does not mean the surviving spouse automatically inherits everything.
What if both parents die at the same time? In the event that both spouses perish at the same time, then the prototypical will provides that all the assets are split equally among the children per stirpes. Those last two words are Latin and generally mean this: if a child dies with or before the parent, then that child’s share goes equally to the deceased child’s children.
This is the most common distribution scheme in the United States and is the default distribution in many states. What about my child’s spouse? Usually, we don’t give any assets to our in-laws; we prefer to give it to our lineal descendants (grandkids) instead of the in-laws. In-laws can always remarry and give the assets to the new spouse.
Trust for kids? If the kids are under the age of 18, a will typically includes a trust to hold the assets until the children reach a specified age (like 25 years old).
Before that time, the children can still use the assets to pay for important and necessary items that the parents would typically approve (things like health insurance, college, basic living, etc.). After reaching the specified age, the child receives the inheritance free of trust and can use the money as he or she sees fit.
What about the sentimental stuff? A typical will does not discuss specific assets. So, what about the family heirlooms and the jewelry and the guns and the tools? A will typically incorporates the ability for the testator to assign personal property by a separate writing drawn up after the will is signed.
The separate writing can be easily changed by the testator and needs only to be signed and dated (no witnesses or notaries required for this part). The separate writing is usually kept with the will but it is a separate document. This allows the testator to easily transfer items of personal property without the need to go back to the drafting attorney.
Who is in charge? The final decision is to determine who is in charge: the executor. In a typical will, the surviving spouse is named as the executor. A contingent executor also is usually named, and that role is typically filled by a sibling or the testator’s children.
There you have it: the prototypical recipe for a will. Though it need not be complex, you should definitely work with an attorney to ensure it’s done right.
Beau Ruff, a licensed attorney, is the director of planning at Cornerstone Wealth Strategies, a full-service independent investment management and financial planning firm in Kennewick.
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