Do I Need a Will if I Have Other Types of Asset Protection?

Do I Need a Will if I Have Other Types of Asset Protection?

by Brette Sember, Esq., March 2015

There are many ways to plan for distribution of your assets after your death. Because there are so many options for transferring assets, it is common to wonder, “do I need a will?”

Probate Problems

The main reason most people try to avoid using a last will and testament is because they want to avoid probate. Probate is the court procedure that validates and enacts a last will. There are costs associated with probate, including court costs and attorney fees, but these are not as expensive as they are generally made out to be and a comparable expense is usually required to create a living trust. To avoid probate you can use vehicles that include trusts (such as a living trust which owns your assets during life and distributes them when you die), a pay on death account (a bank account that automatically transfers to someone else upon your death), joint tenancy deeds (ownership of the real property belongs to the survivor), life insurance (pay out is made to the named beneficiary), and pensions and IRAs (payment is made to named beneficiaries).

Without a Will

If you die without a will, assets you have placed in non-probate vehicles will transfer as you planned. However, it is difficult to have all of your assets covered this way. There will likely be some stragglers – items you own that are not covered by the plans you have in place. If you don’t have a will, these assets can only then be transferred via your state’s intestacy laws. These laws have a strict hierarchy for the relatives assets will go to, starting with the closest (spouse and children).

The most common way to make sure all of your assets go where you want them to, while avoiding a large probate proceeding, is to use a living trust to transfer the majority of assets not covered by deeds, retirement accounts, or life insurance and then create what is called a pour- over will. This pour- over will transfers anything leftover to the trust so the trust can then distribute it. All of your assets can then be transferred successfully without intestacy laws.

Benefits of a Will

If you aren’t interested in making a will and want to pass your assets through other methods, you miss out on a variety of benefits. A will allows you to organize everything in one place, ensure everything is mentioned, and create an all-encompassing plan. If you have assets passing through various non-probate methods it can be easy to lose sight of the larger picture. A will also ensures that a judge has oversight and ensures everything is done according to your plan. A will allows you to amend your plan at any time by signing just one document.

When you create a will, you name an executor, the person who will be in charge of ensuring that your will is probated and assets are transferred according to your wishes. You can give instructions for how you want taxes and debts to be paid from your estate. A will is also the foolproof option for unilaterally disinheriting relatives who would otherwise inherit from you.

A will is the only way to establish guardianship for minor children and to choose a guardian for their financial affairs after your death. If you die without a will and have children, the court will choose a guardian without any input from you.

Will vs. Living Trust

It is common to weigh whether you should use a will or a living trust to provide for distribution of your estate. A trust offers a few benefits that a will cannot. A trust is private and is not a matter of public record. A living trust avoids probate (but has costs associated with establishing the trust). A trust allows you to disinherit your spouse if that’s what you want (most states have a spousal right of election that lets your spouse get a share of probate assets even if you disinherit them in your will). You can transfer assets to the trust during life and continue to use them. A trustee distributes them after your death and distribution can be at death or an established point in the future. A trust can be used for most types of property and can provide near complete coverage, but it is always recommended to use a pour over will with it to be completely safe.

The best estate plan for you may be one that uses several vehicles (will, trust, deed, IRA, and/or bank account) to give you the flexibility and complete peace of mind you are seeking.

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