Why You Need A Will (and When)

Many people are confused as to when and why they should put a will together. I am writing this blog to hopefully give some people more direction toward making the right decision (at least before all their kids are grown!).

When Do You Need a Will?

First of all, let's address the obvious. If you are married and have minor children, you definitely need a will. You should also have living wills and powers of attorney (discussed further below).

Second, if you are single, have very few assets, have no dependents and do not care what happens to your property when you die, you don't need a will. You should however, consider a living will.

If you are married without kids, you probably should have a will especially if you intend to have kids in the not so distant future. Also, include living wills and powers of attorney. Even if you don't have a lot of assets yet, dying without a will makes things real difficult on survivors you leave behind.

If you have a large estate, as well as loved ones (or charities) you care about, you need a complex will with advanced tax provisions drafted by a competent and experienced estate planning attorney. This plan might include revocable and/or irrevocable trusts, living wills, powers of attorney, and other complex documents such as GRATs, CRATs, QPRTs, QDOTs, amongst others. (If you have been through this process already, you may recognize a lot of these acronyms even though you may not be completely clear as to what purpose they serve).

So, Why Do You Need a Will and Other Documents?

When you die without a will (called dying "intestate"), your property and minor children get subjected to the rules created in the particular state in which resided at your death. Although courts are always concerned about the best interests of your surviving minor children, the disposition of your property is often another story. The intestate rules which apply to property distribution generally favor the state and the general public, not the individual and their family. Tax rules are written as such to take the largest amount of tax unless some prior planning has been done. In addition, many states have a costly probate process - the process of submitting your will to court and disposing of your assets. Planning can be done to minimize the costs of probate. In addition, regarding minor children it is important that you and your spouse choose guardians for them - do not leave surviving family members to battle it out and argue over what they think your wishes are.

Also, between surviving spouses and surviving children, every state has different rules as to how much of the estate your spouse is entitled to. Dying without a will can make financial survival very difficult for your survivor.

With situations of divorced parents, second marriages, same-sex couples, having a written document is a must. In most situations, your property will not pass as you intend.

You should have a living will if you wish to avoid being kept alive by artificial means. Take the Terry Schiavo case out of Florida. She did not have a living will or advanced healthcare directive (sometimes called a medical power of attorney). Her husband applied to the court for permission to remove her from life support. Her parents opposed the position of her husband and it became a national and political issue.

Powers of attorney are often valuable between spouses and business partners to act on each others behalf in situations of abscence and disability. They are various types of powers of attorneys including durable powers, nondurable powers, and springing powers.

Life is a random walk. There is no better time than the present to get just the basics of your affairs in order. I often find people shy away from completing wills because of the price (I charge from $1,800 and up for wills, living wills and powers for both spouses in New Jersey - obviously price will vary from firm to firm and from area to area). People can often be penny-wise and pound-foolish. Don't put such a small price on your family's safety and financial security.

Beyond the appropriate documents, take the time to organize your affairs to make the process after your death easier on survivors. We are publishing a book - "For My Heirs: A Journal of Guidance and Last Instructions" just for this purpose. If you'd like more info, please contact our office.

I welcome comments and questions, so feel free to post them.

Organizing Your Estate & Personal Affairs

When it comes to designing an estate plan, we draft your documents: wills, trusts, powers of attorney, living wills/medical powers of attorney, and any other appropriate documents. These documents are drafted in such a way as to meet the client’s objectives and to take maximum advantage of all tax credits and exemptions available to the client and his or her family. For most attorneys, that is where the work ends. For me, it is just the beginning.

When someone dies, their documents don’t do the work themselves. It takes a family member and/or an attorney, hired for that purpose (this process is called “probate”) to file to the appropriate paperwork and execute the directives of the will. Sometimes this takes an amount of interpretation, but it always involves the process of going through the deceased’s personal belongings, locating life insurance policies, accessing safe deposit boxes, and retitling of assets. Almost all my clients (as with most other attorney’s clients) virtually ignore the process of organizing their affairs in such a way as to make things as easy as possible on their survivors. I am yet to deal with an estate, whether small or large, where things aren’t at least somewhat of a mess. Many clients have asked me whether I had some information that described the probate process and gave them some tools to organize their affairs for their loved ones.

I am, therefore, in the process (about 2/3rds of the way) of creating a publication that will be entitled “For My Heirs: A Journal of Guidance & Instructions”. This booklet will include sections to leave letters of love and guidance for surviving heirs, places to list assets, personal belongings, funeral directives, obituary statements, insurance policies, sample letters for benefit requests, as well as general information about the local probate process. From my research, there does not appear to be any type of publication of its kind, at least nothing this comprehensive.

The booklet will be offered to existing and future clients for approximately $30 to $50 if they want to prepare it themselves; probably $300 to $500 if they would like to firm to prepare a customized version for them. Perhaps we will offer it at a different price to the general public.

I am still accepting suggestions based upon personal experience from anyone wishing to contribute. If we use your ideas, I will give you a set for you and your spouse to complete – free of charge. Also, if you’d like to get on the advance purchase list, please email us. We will send you information as soon as it becomes available.

If you have a personal story regarding a difficult situation you’ve faced with a deceased loved one, I ask you to share it. It will help those in the future avoid such unintended circumstances.

So remember that when some one asks you if you have organized your personal affairs, having an up-to-date will is not enough. That only starts the process. I look forward to my next entry when I address “why you need a will.”

Starting at the Beginning

This blog has been created to share my thoughts, ideas, strategies and opinions about various topics, legal or otherwise. In addition, it is intended to share the unique services I provide to clients and to better inform those looking for a new attorney relationship.

This is my first posting.

My practice is a transactional one, focusing on wills, trusts & estates, corporate/business planning, asset protection planning, and real estate. The practice has been and is being built around clients who require our full-time support on a retainer basis. I call this our Legal Retainer Program and I will discuss it in more detail in later blogs (if you'd like information, please email me). I find that many of these types of clients (Professionals, Executives and Business Owners) use a multitude of legal advisors for different purposes. Nothing is coordinated or integrated and many parts, unbeknownst to the client, are missing. One of their attorneys might have ideas that would better help the client or protect them, but they fail to bring them to light either because they do not have intimate knowledge of the client's entire situation or because they believe the client does not want to spend the money. Many professionals, Attorneys, CPAs, and the like, take the "let's not rock the boat" attitude and fail to make effective and continuous recommendations. I've seen it time and time again: there is some action the client should take or a decision he or she should make, but the advisor won't push them to make the decision out of fear of damaging the relationship. In reality, their failure to do what's right for the client ultimately causes more damage many more times than not.

Instead, I have chosen to develop the firm on a flat-fee retainer basis (costs and the use of outside professionals is additional). The client pays a regular, manageable cost and we can change, update, negotiate, and recommend all that is in the client's interest. We track our time and may adjust the retainer for the following year. The client gets integrated, holistic advice and has an advisor who always acts in the clients interest.

I welcome free consultations in our office. If you think our service would better serve your needs, give us a call.

Enough of the commercial!

In later blogs, "why you need a will", "how to buy distressed real estate", and "asset protection secrets".