When drafting a will for a client, it is important that an estate planning attorney remember that we are doing more than putting together a legal document – we are also offering peace of mind. With that goal in mind, it is important to discuss four basic areas to help us tailor a last will and testament for a client.
Family:
The first question centers around the client’s family. Are they married? Were they ever divorced? Do they have any children and grandchildren. Are any children from a prior relationship? If they don’t have children, are their parents alive and do they have siblings? These questions are not only necessary to determine who the heirs and beneficiaries are, but they are also vital in order to advise about any possible issues, such as locating distributees or preparing for a potential will contest. At this point, we also discuss the client’s health condition and other medical concerns which may affect the estate plan, and the speed at which it is implemented.
Assets:
Once we understand the family structure, we discuss the client’s financial picture. Even though not all assets will pass through the will, it is necessary to know what the client owns for a few reasons. First is to identify which assets will pass through the will. In fact, most assets like life insurance and jointly owned property will pass outside of the will, as we discussed in a prior article. Second is to determine if the client has any estate tax issues based on the size of the estate. This is also an opportune time for the client to review their deeds and beneficiary designations to make sure that they still reflect their wishes. Many times, clients don’t remember who is on title to real estate or who their beneficiaries are, or worse: their desired beneficiary has changed, but their beneficiary forms have not.
Distribution Desires:
Once we find out about the family and the assets, we discuss what the client wants to happen with his assets after he passes away. If the client has minor children or grandchildren, we discuss minor’s trusts as a way to leave assets to minors with control being given to adults to manage it for them. We also discuss contingency plans – what happens if your beneficiary predeceases you – where does their bequest go?
Executors/Trustees/Guardians:
First, the definitions: An Executor is the person who is responsible for managing your estate when you pass away. He collects your assets, pays your final expenses and debts, and distributes the remainder as per your will. A trustee is responsible for any property that is left for him to manage for the benefit of someone else (typically a minor). A guardian is a person who is entrusted with either the custody of a minor or the property of a minor that is not otherwise left in trust for that minor. There can be one guardian for the property of a minor and one for the custody of the minor. In our conversation, we discuss all of these roles and decide on the best people to manage each role. In my experience, the issue of the guardian of the custody of the minor is one which causes the most friction between married couples but is almost always resolved amicably. These are among the most consequential decisions one can make in their estate plan, so we never rush the process. We encourage clients, before they list someone as an executor, trustee, or guardian, to speak with the proposed individual to see if they would take on the role.
Estate planning is an important undertaking with many nuances which need to be considered. These four questions are just the basic topics which are discussed. For your specific situation, it is important to speak with an experienced estate planning attorney to being the process of leaving your legacy to your loved ones.
Roman Aminov, Esq. is an elder law and trusts and estates attorney concentrating in estate planning, elder law, and probate. He is experienced in the drafting of wills, powers of attorney, health care proxies, and trusts of all types. He can be reached at: Law Offices Of Roman Aminov 147-17 Union Tpke, Flushing, NY 11367 (347) 766-2685 Aminovlaw.com
