Blog Post

Nobody wants to think about their mortality. But it’s much better to do so when you have the time, and the health, to consider everything you need to do to protect your assets, your belongings, and most importantly, your loved ones.

A will is the most well-known legal document that people know about in terms of preparing for the future. However, it is just one of the multiple documents required to ensure everything is in order. It is best to enlist the help of legal experts to establish your complete estate plan; we can help you with that. We offer a complimentary consultation – and will even speak to your business or group – in person or via Zoom, at no charge.

For now, here are some details surrounding what you need to know about creating a will. If you think we might be able to help you, please don’t hesitate – connect with us!

The coronavirus may have you thinking more about your mortality – no surprise there. However, the societal response to COVID-19 has created a host of issues almost unheard of in modern times. Of particular concern to estate planning is the fact that, for now, intimate contacts with family members are either limited, or outright prohibited (e.g. hospitalizations,
but also births, funerals, and important religious ceremonies). In practical terms, this means that you should not count on a scenario where you will be surrounded by family and friends who can help facilitate you making a proper estate plan from a hospital or other care facility.

In any event, it is important to consider what would happen to your bank accounts, your home, your belongings — i.e., everything you own — and, perhaps your dependents, when you are no longer here.

In other words, you should prepare a will if you do not already have one.

“In every jurisdiction, if there isn’t a valid will, assets will pass on to your heirs by law, who may or may not be who you would have provided for in a will,” said Samantha Weyrauch Davis, an estate planning attorney, and director with the law firm Hall Estill in Tulsa, Oklahoma. “It also lets you name a guardian for children.”

If you pass away with no will — which is called dying “intestate” — a state court decides who gets your assets and, if you have children, who will care for them.

This means that if you have an unmarried partner or a favorite charity but no will, your assets may not end up with them. Typically, the courts will pass on assets to your closest blood relatives, even if that would not have been your first choice.

A will is just one piece of an “estate plan.” An estate just refers to what you own — your financial accounts, possessions, and any real estate. Putting a plan in place for those assets helps ensure that upon your death, your wishes are carried out and that family squabbles do not evolve into destroyed relationships.

In other words, it is partly about making things easier for your loved ones during an already difficult time.

Here’s what else you should consider if you want to prepare a will.

What will can and cannot do

A will is a document that lets you relay who gets what when you pass away. You can get as specific as you want (i.e., you leave a certain family heirloom to a particular person) or keep it more general (i.e., you want your surviving spouse to get everything).

However, there are some assets that pass outside of the will, including retirement accounts such as 401(k) plans and individual retirement accounts, as well as life insurance policies.

This means the person named as a beneficiary on those accounts will generally receive the money no matter what your will says. (Be aware that 401(k) plans require your current spouse to be the beneficiary unless they legally agree otherwise).

Regular bank accounts, too, can have beneficiaries listed on a payable-on-death form, also known as a POD, which your bank can supply.

If no beneficiary is listed on those non-will items or the beneficiary has already passed away, the assets automatically go into probate. That’s the process by which all of your debt is paid off and then the remaining assets are distributed to heirs. The process can last several months to a year or more, depending on where you are and what’s involved in handling your estate.

If you own a home, be sure to find out how it should be titled to ensure it ends up with the person (or people) you want it to, because the laws can vary from state to state. Moreover, there can be other considerations when it comes to how a house is titled, including protection from potential creditors or for tax reasons later when the home is sold.

Where to get a will

You can turn to an estate planning attorney in your local area — to ensure familiarity with state laws — or use an online option. However, be aware that not all of the web-based alternatives will necessarily reflect the specifics of your state’s law.

“There’s risk in doing it that way,” Davis said. “Those forms or software may not be compliant with your local law, so look at the fine print.”

If an online option ends up being appropriate for your situation, you may be able to find a form to download for free. Software will-making options can run about $60 or more, depending on what else is included. To set up an estate plan with an attorney could run from several hundred dollars to more than $1,000, depending on the complexity of your situation.

Also, you’ll need to have a witness and/or notary sign it and make the document official, depending on the state where you live. The American College of Trust and Estate Counsel’s website offers a guide to laws and accommodations in every state if in-person meetings are not permitted due to the pandemic.

Another big decision

As part of the will-making process, you’ll need to pick an executor of your will (sometimes called a personal representative).

This can be a big job, experts say. Things such as liquidating accounts, ensuring your assets go to the proper beneficiaries, paying any debts not discharged (i.e., taxes owed to the IRS), and even selling your home could be among the duties undertaken by the executor.

In other words, just because you’ve known your best friend since elementary school doesn’t mean handling the challenge of being an executor is up to their alley.

Other documents to prepare, while you’re at it

Typically, estate planning also includes preparing a few other legal documents. This includes an advance health-care directive, also known as a living will.

This document outlines your wishes if you become incapacitated due to illness or injury.

Say you are on life support. Instead of a loved one making the agonizing decision whether to end all life-saving measures, your wishes would be specified in a legal record.

It’s also worth assigning powers of attorney. If you become incapacitated, the people you grant powers of attorney will handle your medical and financial affairs if you cannot.

Often, the person who is given this responsibility when it comes to your health care is different from whom you would name to handle your financial affairs.

As with choosing an executor, make sure whoever you hand the financial reins to is trustworthy and smart.

“I tell my clients it’s really important to carefully consider the individuals you name,” Davis said. “You want to make sure they have the ability, skillset, time, and desire to make such decisions and do these sorts of things.”

Make a list of critical documents

While it can be hard to imagine your own death, picture your family having to search through drawers for your original will, documents regarding your bank accounts and other assets, and maybe even your Social Security number.

The best way to avoid forcing them to deal with that task on top of mourning is to leave an organized list of information that the will’s executor will need to settle your estate, experts say. Be sure this includes passwords so your online accounts can be accessed.

Consider a trust

If you want your kids to receive money but don’t want to give a young adult — or one prone to poor money management — unfettered access to a sudden windfall, you can consider creating a trust to be the beneficiary of a particular asset.

A trust holds assets on behalf of your beneficiary or beneficiaries and is a legal entity dictated by the documents creating it. If you go that route, the assets go into the trust instead of directly to your heirs. They can only receive money according to how (or when) you’ve stipulated in the trust documents.

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Robert Fraxedas is an accomplished attorney with 15 years of legal experience, focusing on estate planning, probate, elder law, and business planning. In 2002, Mr. Fraxedas graduated cum laude from the University of Florida with a bachelor’s degree in philosophy. There he was a National Merit Scholar and a member of the esteemed Phi Beta Kappa Honor Society. In 2005, Mr. Fraxedas graduated from the University of Florida’s Levin College of Law. After practicing for 10 years, Mr. Fraxedas obtained his LL.M. Degree in Estate Planning from the University of Miami School of Law, graduating cum laude.

Mr. Fraxedas is an experienced, knowledgeable, and hardworking attorney who cares deeply about his clients. He will get to know you, your family, and your goals and develop a personalized plan that is tailored to meet your needs. Whether it’s a simple will, complicated probate, crafting a trust for your children, or obtaining Medicaid or other government benefits, Mr. Fraxedas is committed to taking care of you and your family as if it were his own.

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