Get Cracking On Will
September 1, 2004
by Edward Polansky
San Antonio Business Journal
People, in general, are often hesitant to prepare wills. There's a number of
reasons for this.
1. They are reluctant to consider the impact of their death. "I'm too young."
"I'm not married." "I don't have any children." "I've got plenty of time."
Some people have to literally be led by the hand to an attorney to establish
a will. Why? They are trying to avoid acknowledging mortality.
You have to face reality: We are all going to die.
2. They want their will to be perfect, so they wait until everything is lined
up just right. They prefer to have no will than a will that doesn't cover everything
just the way they want it.
"I can't decide who'll be the executor." "I don't know who should be the guardian
to my children." "I want to leave something to charity, but I can't decide what
or how much."
Get something done immediately, even if it's not perfect, because you can always
come back and improve the product. And you should do that routinely over the years
as changes happen in your life.
3. They fail to realize the need for a will as they don't feel they have many
assets to give away.
"I don't have a taxable estate, so why worry?" "All I've got is some personal
assets...who really cares?"
The way I see it, if nothing else, personal assets can be divided. Feelings have
been hurt many times over who got Mom's china.
In state's hands
One can rationalize their way out of creating a will, but the negative results
can be significant, even devastating.
Wills provide for the orderly disposition of assets when you, as the owner, die.
If you die without a will, state law will decide how your assets will be distributed.
Without a will, family disputes can ruin relationships between those left behind.
The surviving spouse of a married couple with children could face a major problem
if there isn't a will.
Take the case of the widow whose husband died after a brief battle with cancer
shortly after retiring early. He had told his son he was leaving funds in some of
his bank accounts to him. His wife had believed they were being left to her. A will
didn't exist to clarify the man's position. Neither his wife nor his son would compromise
their positions and the son ultimately sued his mother. This deeply divisive family
conflict could have been avoided had the man's intentions been stated in a will
and had he made the proper beneficiary designations.
In Texas, which is a community-property state, it's worth looking hard at the
ramifications of the law, particularly if you come from another state. No will means
the state determines who gets what and the effect -- at least in Texas -- is to
divide the assets among the mother and the children. Even though a spouse would
have intended for the surviving spouse to have complete control over all of the
couple's assets, the law may disagree.
Beneficiary designations
Even if a will exists, it applies only to assets controlled by your estate. Many
of your assets may not be a part of your will, but rather a result of how you establish
your beneficiary designations when you set up the account -- often something you
hardly give a second thought. Assets, such as bank accounts, life insurance payments,
and retirement accounts will transfer on your death according to the beneficiary
designations and are not affected by terms of your will.
In the case where a will indicates certain assets should go to one beneficiary,
yet the account holding the assets designates a separate beneficiary, there is bound
to be a dispute.
Regular review
Even if you have a will or think that you have appropriately planned for the
disposition of your assets, it's vital to review it again from time to time with
competent legal counsel. Take the example of an elderly woman who owned valuable
real estate in Hawaii. She died without a will, thinking she didn't need one since
she had transferred assets during her lifetime while reserving a life estate for
herself -- meaning she had access to property until her death. She had not understood
that the assets would be considered to be assets of the estate and tax would be
due at her death. Because she had made no provision for the estate taxes, the estate
was required to sell the property in Hawaii, precluding the heirs from keeping it
in the family.
Circumstances change ... you may have another child or children, or one may suddenly
die. Divorces can occur, or remarriages, and beneficiaries become bankrupt or incompetent.
Many people change their minds about what to do with their assets ... at one time
they may want to leave a substantial part to their children, but they may think
differently when their children become successful in their own right and they themselves
become more philanthropically inclined as they age.
A growing sentiment today among maturing people is not to leave too much wealth
to their children because it may stunt their incentive to be successful on their
own.
Many reasons exist for you to have an up-to-date will. Consider, though, that
it may not accomplish everything you intended. It's useful to review the beneficiary
designations for your assets, as well as your will, to make certain that they fit
with what you want to do for those you leave behind, whether they are family or
friends, or organizations you wish to help. Reviewing your situation can also be
simply to ensure there is no hurt or animosity when people learn what is to be done
with your assets if you die unexpectedly.
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