Thoughts from an Estate Planning Attorney
By John R. Becker, Esq., Becker & House PLLC, Scottsdale LIVING WELL Magazine
An all-too-common mistake I have seen in my years of practice is the failure to have a well-written Last Will and Testament in place before death. Among other things, a Will directs the disposition of assets and administration of one’s estate. Everyone, regardless of age, health, or financial status, needs to have a Will, especially if minor children are involved. Dealing with the loss of a loved one is difficult in and of itself, without having to worry about the burdens of administering an estate. However, by following the simple suggestions below during your lifetime, you can significantly alleviate your family’s stress after your passing.
Guardian and Trustee Provisions
One of a Will’s most important functions is to name who will care for your minor children upon your death. In Arizona, we call this individual a Guardian. Within the Will, provision should be made for different people to serve as Guardian of your children and Trustee of your children’s finances. Doing so creates a system of checks and balances and protects against the misuse of your children’s money. If your Will names a couple as either Guardian or Trustee, you should also address who shall serve as successor should the couple divorce or upon the death of one spouse. Take care to specifically address which spouse shall serve as successor should death or divorce occur, or alternatively, name an entirely different person or couple to serve as successor. Including as much detail as possible in these provisions helps ensure your true wishes are carried out upon your death.
Details often over-looked, yet just as important, are beneficiary designations on individual retirement accounts, life insurance policies, and other similar assets. These assets typically pass directly to the person you have designated as beneficiary, and it is important to keep these designations current so as to avoid the assets passing to an unintended beneficiary. In my opinion, a minor child should never be named as a beneficiary of these type assets. In addition, in most cases it is not prudent to name a third party as beneficiary with the thought they will use the property to care for minor children. Instead, either under a Will or Revocable Trust, create a protective arrangement for the children.
The term Ethical Will may be misleading, as an Ethical Will neither disposes of assets as done by a Last Will and Testament, nor does it concern health care directives that are typically addressed in a person’s Living Will. Rather, an Ethical Will is a means of sharing one’s values, ideals and aspirations with family and friends after their death. An Ethical Will may be in the form of a letter or series of letters, and may contain a variety of content from a simple expression of one’s values to statements encouraging philanthropic activities.
Provision for your wishes regarding a funeral and disposition of your remains should also be made in as much detail as possible, in a document separate from your Will. Providing for as many details as possible during your lifetime will greatly benefit your family by reducing the number of decisions they will be required to make after your death. To the extent possible, you may address a variety of matters, such as whether you wish to be embalmed or cremated, donation of organs, visitation and memorial services to be held and where memorial contributions should be directed.
These suggestions are just a few of the most fundamental issues everyone should consider in the course of the estate planning process. Taking the time to do so will greatly reduce the burden placed upon your loved ones at your death, and will surely be the gift for which they will be most grateful.
John R. Becker is a Certified Estate and Trust Law Specialist with Becker & House PLLC and may be reached at 480-240-4020.