When a Will Is Not Enough

Estate planning literature and a cup of coffee on a desk.Almost everyone is familiar with the fact that a last will and testament is an essential part of ensuring your family’s future will be secure even after you pass away. Wills can be very simple documents and boilerplate forms are widely available on the internet, although these skeletal forms do not take your individual circumstances into account, and can result in litigation and instability for your family after you pass. In addition, although a properly executed will is the cornerstone of any estate plan, there are times that a last will and testament is not enough to achieve your estate planning goals.

One time that a simple will is not always enough is if one of your goals is to minimize the amount of assets in your estate to simplify probate. Generally speaking, the assets that you pass to beneficiaries through your will must pass through probate.  A last will and testament cannot remove assets from your estate.  An alternative to this would be to establish a trust. The assets in a trust typically pass outside of probate, avoiding expense and saving time.

Another time that a will is not enough is when you are naming a guardian for your minor child. This is a commonly misunderstood element of the law.  You are free to nominate a guardian to raise your child if you pass away before your child attains the age of majority.  However, a last will and testament is not sufficient to absolutely bind a court to your preferred guardian. This is especially true if the other parent is still alive at the time of your death.

Wills also are not sufficient to designate others to make decisions on your behalf if you become incapacitated. The purpose of a will is to distribute your assets after your death. There are other documents you will need to execute if you want to make sure a particular person has the ability to make health care decisions for you if you cannot do so on your own. For example, if you are in a catastrophic automobile accident and end up in a coma, a will is not the right document to name a person to make your health care decisions while you are recovering. Instead, you will need to execute a health care directive designating a person to speak on your behalf.

If you have questions about the right estate planning instrument to achieve your goals, call us today at (651) 371-9117. We can talk with you about your goals and your plan.