**As seen on Forbes**
Frank Armstrong, III
Prince is just the most recent of a long line of mega rich celebrities to die without a will. You just have to wonder where his advisors were. His empire was so large and complex that it’s going to cost many many millions to straighten it out. The estate is likely to stay open for longer than Prince lived! Meanwhile, the fees to run it will approach the GDP of a small African country. And the results probably won’t look anything like what Prince might have wanted.
It got me to thinking about a sad personal family story: My Grandmother didn’t speak to her sister for over 40 years. They both died without ever speaking to each other again. Why? A dispute about a hutch in their mother’s estate. Each believed that Mother would have wanted her to have the family heirloom. Given that the family was destitute, at the height of the Depression, the value of the hutch was probably close to zero. But, it must have had great sentimental value to the girls.
This whole sorry comic opera saga could have been avoided if Great Grandmother had left the very simplest will. No matter how rich or poor you are, everybody should have a will. That means you, and if you are like most Americans, you don’t have one.
OK, you and I are not Prince. But, we all need wills. Remember, if you have no will, the state has one for you. It’s called intestacy. It’s probably not what you want, and it will be expensive, aggravating, and time consuming to settle your affairs. The state doesn’t know your family, which charities you might like to benefit, or that you always wanted your first daughter to get your jewels. But, the state has a formula and that’s how it’s going to be settled.
Many people feel that because they have most of their property jointly titled, or their property passes by beneficiary selection in IRAs, pensions, insurance contracts and/or is in trusts that they don’t need a will. It’s just not true. The very first thing you need is a will, and you need to keep it up to date.
Every financial advisor has seen cases where lack of a proper will has led to a total disaster making the death of a loved one so much harder to bear. I had one spouse tell me that she would never forgive her husband for the mess he left behind. And we have all seen cases where a proper will made the very best of a very bad situation.
What should we consider?
Wills are very flexible and can include a number of provisions that will assist you to carry out your wishes. But, they are not one size fits all, and won’t provide complete solutions for large or complex estates. Nevertheless, everybody should have one as an essential part of their estate planning. Here are just a few things to consider as you work with your advisor and/or attorney.
Personal Representative: This is the person that will settle (probate) your estate. That requires gathering your assets, paying your debts and taxes, arranging for the distribution of your remaining property to your beneficiaries and filing paperwork with the courts to wind up your affairs. Of course, it should be someone you trust, but they should also be willing and able to serve. This person can be a family member or a close personal friend. Depending on how complex your situation is, being a personal representative can be a time consuming and challenging task. If this is the case, you may want to consider a professional so that your family members are not burdened, or if you have no immediate family members who are up to the task during this time of stress. Whoever you appoint, you should consider discussing their appointment with them in advance so you can be assured that they are willing and able to carry out your wishes.
Guardians: If you have underage children you may want to designate the person who will care for them. This may be the toughest decision couples face. Better you decide now because the court can’t know that your brother doesn’t share your values, abuses drugs, chases women shamelessly, can’t hold a job, and is financially irresponsible.
Suppose you have one family member that shares your values and loves your children but is not financially sophisticated? You can divide the responsibility into a guardian of their persons who will love, nurture, educate and teach them values, and another guardian of their property who will invest the funds and make them available to the guardian of their persons. You might also consider what funds might be reasonably necessary to the guardians to offset additional housing costs, medical, education and other expenses that would be incurred.
Beneficiaries: Your will ensures that your assets go to whom you wish. It’s your decision to direct which persons and organizations benefits from your estate and in what proportion. You do not have to treat all family members equally. For instance, if one child has finished college, and the other hasn’t yet started, you can make provisions for the college education first, and then divide up the remaining assets equally.
You can leave your assets to beneficiaries outright or in trust for their future benefit. The amount distributed can specify a dollar amount or use a formula such as a percentage of the net estate to each. They are your assets and you’ll have flexibility to do as you choose.
Specific Bequests: In the event you have personal items (like the family hutch mentioned above), or other tangible personal property, you can make specific bequests of those assets. For personal items, you may consider referencing a letter detailing specific bequests of property that you leave on file with your attorney or in a safe place like a safety deposit box. Examples of items you might consider are cars, boats, art work, jewelry, stamps, collectables, fishing gear, furniture, silverware, glassware, and china. Using an updated letter like this prevents you from redrafting the will each time you acquire a new piece of art or other piece of property.
Charitable Contributions: Part or all of your estate could go to a charity or charities you direct to carry out your philanthropic intent.
Pour over provisions: For some, they may want to have a Trust control the distribution of their property rather than a will. After all your specific bequests, debts and taxes are paid, you can direct the balance of your estate to pour over into a trust that will have provisions to distribute assets to your family, possibly for several generations while minimizing any potential future estate tax implications.
Spousal Rights: Your state of residence may have specific rights for surviving spouses. If violated by the will and absent any agreement among the spouses, the surviving spouse may be able to elect against your estate, subject to state law.
Don’t try this at home. A professional can help you craft a solution that fits your situation and family needs. Everybody should have a will, and because things change they should reexamine it from time to time.
In some cases that’s all you might need, but it’s the foundation of every estate plan. Now would be a very good time to get started.