Death. No one wants to talk about it, other than maybe joking around. Most of us especially hate talking about it with the folks we'll likely be inheriting from, or bequeathing to.
“Maybe half of Americans have a current and valid will,” says Debra Pankow, North Dakota State University Extension family economics specialist.
That's a shame, too, because without a valid will — basically a document describing how you want your property doled out after you're gone — you're casting your estate to the fickle winds of fate and state.
“If you don't have a will, your assets will be distributed according to state law,” explains Kynda Curtis, University of Nevada-Reno assistant professor.
Every state has different laws about the property distribution of a decedent — what you become in the eyes of the court upon your death. Without a will the state decides what portion of your property goes to which heir. The heirs can fight this, of course, with money and time.
Plus, even if the property you have would be disseminated by the state exactly how you hoped, it can take a while.
“Wills don't provide any mechanism for estate planning or asset transfer outside of the probate process which is lengthy — nine months,” says Curtis. Probate is the legal procedure for settling an estate.
As such, Curtis cautions, “Although drafting a will is a very important part of estate planning, it's not enough. Estate planning outlines the distribution of assets like a will, but it can also create financial security for heirs, address business organization issues, and grant peace of mind to heirs and the grantor.”
For instance, if property is simply bequeathed to an heir via a will, taxes are assessed at the time the property is transferred, Curtis says. On the other hand, selling the property outright to the next generation, or on an installment plan, also has its own challenges relative to the viability of the business and the new owners.
Curtis explains there are a variety of mechanisms to transfer property, including trusts, buy-sell agreements, gifts and corporate business design.
“Each should be considered in the context of the farm/ranch situation and goals of the family. An estate lawyer should be involved as well as an accountant…,” she says. “As tax laws constantly change and families grow, it's important to revisit and update your will at least every few years.”
The ways of a will
When you go to you're final reward, there are only two routes as far as the law is concerned, testate — with a will, or intestate — without a will.
The key foibles of accepting the intestate approach have been mentioned. Even when you opt for the testate option though, it's not necessarily as easy as writing your final instructions on the back of a feed sack.
For one thing, terms that make perfect sense to you may have an entirely different meaning or interpretation from a legal standpoint. That's one reason many states won't allow handwritten, unwitnessed wills — termed holographic wills.
For the same reason, according to various legal sources, few states will accept an oral will — termed cupative. If they do, it's usually in very specific circumstances, such as a soldier near death who passes his last wishes along to a companion.
The third basic type of will — called a self-proving will — is the one that will pass legal muster if executed according to laws of the state.
“Anyone of sound mind and possessing the rights of majority, may dispose of any or all of his or her property by will,” Pankow explains. “A testator is judged to be of sound mind if he or she has the capacity to know the general nature and extent of property owned, and the natural objects of his or her bounty — those who would ordinarily be expected to inherit property because of ties of relationship, obligations or other reasons.” It's easiest to think of rights of majority in terms of the legal age in your state.
In order to be admitted to probate, a will must be executed with certain formalities,” Pankow continues. “It must be in writing, be signed by the testator (or someone else in the presence of the testator), and be signed — in the presence of the testator — by two disinterested witnesses who either saw the testator sign the will or heard the testator actually acknowledge that the will is his or hers.”
There are obviously other requirements but those are the basics.
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“I firmly believe in using a lawyer for wills,” Pankow says. Besides making sure the document is valid, she points out, “Even if you do it yourself, you still need to have it witnessed to make it legal and binding.”
That doesn't mean you have to use a lawyer from square-one, though. There are a variety of low-cost and free software and instruction manuals that can lead you through the process. Pankow says these can help you get your thoughts together and accomplish a lot of the legwork a lawyer would otherwise charge you for.
Even with a valid will and everything ship-shape, Pankow says it's common for folks to be more casual about transferring their non-titled property. Think here of everything else you own, from valuable family heirlooms, to the new pair of socks you treated yourself to last week. Think of items with little intrinsic economic value that have priceless sentiment attached to them.
In fact, when instructions for the distribution of non-titled items are ignored or lacking, Pankow says it can lead to relationship-ending divisiveness within families.
“Mom said if she ever died, I'd get this,” says one.
“No she didn't. And even if she did, I'm the oldest, so I have the say,” says another.
Toddlerhood and adolescence all over again.
That's one reason Pankow advises folks to include instructions for distributing non-titled property in their wills.
“The North Dakota probate code provides that a person may refer in a will to a separate list disposing of tangible personal property (not otherwise disposed of in the will). However, this list cannot include money, evidences of debt, title documents, securities or property used in a trade or business,” explains Pankow. “The list — separate from the will — must identify the items with reasonable certainty, state who is to receive them and be dated. It must be either in the handwriting of the testator or signed by the testator.”
Even if state code doesn't allow for such a listing, Pankow says it could be included with another document she recommends — a letter of last instructions. As the name implies, this is a letter to the lawyer or executor telling the family your last wishes. It could include everything from telling your heirs where to find important documents, which insurance policies and creditors to contact, a list of how you want property divided that's not part of the will, to your philosophy and hopes for how the family business is carried on, or isn't.
Pankow emphasizes, “A letter of last instructions is not a substitute for a will, but it does eliminate uncertainty and confusion when death occurs. It enables the survivors to handle financial affairs in an orderly manner. It can also help individuals get a clearer picture of their own affairs, as well as remind them where important papers are located.”
For anyone worried that a will made today could turn out to be a mistake tomorrow, Pankow points out that testators can change or revoke their wills at anytime during their lifetimes, as long as they remain competent.
“This allows the testator the opportunity of changing a will to keep it in line with changes in circumstances, tax laws or family situation,” says Pankow (see “Time to Review Your Will” page 27).
Don't just start crossing out words and adding Aunt Mabel's name, though.
Pankow explains that wills can be amended with that are called codicils. These are supplements or amendments to a will, which must be executed the same way as the will in order to be legally binding.
Like the will itself, that means these codicils must be self-proved. This is an affidavit signed by the testator and witnesses that verifies the testator wanted to make the changes, or make the will to begin with.
“A will should not have words or statements marked out or added. They are ineffectual and may destroy the entire will. If major changes are desired in a will, it is better to revoke it and make a new one,” Pankow says.
Any time your family or financial situation changes, you should review your will. According to Debra Pankow, North Dakota State University Extension family economics specialist, such circumstances might include:
- birth of a child
- marriage or divorce
- death of a beneficiary
- substantial changes in the value of any property
- moving to another state
- the executor no longer able to serve
- the guardian no longer able to serve, or is no longer needed
- changes in the tax laws
- acquiring additional property
- a desire to change the status of beneficiaries.
More information from Kynda Curtis can be found at www.unce.unr.edu/publications/FS06/FS0610.pdf
More insight from Debra Pankow can be found at www.ag.ndsu.edu/pubs/estate.html
The American Bar Association has a Web site with answers to questions such as what happens if you die without a will, what a will does and doesn't do, and how to execute a will. Go to www.abanet.org/rppt/public/intro-to-will.html