A will is a legally binding directive stating who will receive your property upon your death and is an important part of a comprehensive estate plan. If you die without one (intestate), the state will distribute your assets and property via state law and quite possibly at odds with your wishes. Having a will allows you to appoint a legal personal representative or executor to carry out your bequests and name a guardian for your children. There is no doubting the importance of having a will, however there are some limitations you should be aware of. From our experience, a Will is your “admission ticket” to probate court, a Will will not protect you from the estate “death” tax, a Will will not protect you or your beneficiaries from financial creditors and predators and a Will will not protect your home or property from the $15,000.00 per month nursing home.
Although a will can be the primary mechanism to transfer property on death, it does not cover all property situations. Some classes of property you are unable to distribute through a will are:
- Property held in trust – A trust will have named beneficiaries who will receive the trust’s property according to the trust terms and not based on what is in your will (unless specifically stated in the trust).
- Pay on death accounts – Informally known as PODs, the original account owner names a beneficiary(s) to whom the assets in the account pass automatically upon the owner’s death.
- Life Insurance– Life insurance benefits pass to your named beneficiary(s) in the life insurance policy and are not affected by your will.
- Jointly held property – Co-owned property is not distributed through your will. Joint tenants have an equal ownership interest in the property, and when one joint tenant dies, their interest ceases to exist. The other joint tenant now fully owns the entire property.
- Retirement plans – In a similar manner to life insurance, money in an IRA or 401(k) passes to the named beneficiary(s). According to federal law, a surviving spouse is generally the automatic beneficiary of a 401(k); however, there are some exceptions. An IRA permits you to name a beneficiary(s).
- Investments in transfer on death accounts – Some accounts holding stocks and bonds will transfer on death to the named beneficiary(s). Like POD accounts, transfer on death accounts bypass probate and go directly to the beneficiary(s).
A will does not allow you to avoid probate. By necessity, a will must go through the probate process in order to allow beneficiaries to inherit property. It can take months to get through probate, and it involves expenses like an attorney, executor, and court fees. Also, your will and everything associated with it (property you own, who your beneficiaries are, etc.) becomes part of the public record that anyone can access.
Keep funeral instructions outside of your will. The reality is your funeral may have already taken place before someone finds and reads your will, which can take days, even weeks. If your funeral or memorial service is important to you, the best way to help your family is to pre-plan, making arrangements with a funeral home. You can leave written instructions with the family as to your plans.
Your pets cannot inherit through your will. An animal is legally unable to inherit money or property from you. If you want your pets to be cared for after you die, leave money to a person willing to take care of your animals. The person you select can inherit your pets since a pet is considered property. You can also set up a pet trust or a pet protection agreement, either of which provides for your pet’s care.
Provisions for a child on government benefits are best in a trust. It is best to create a special needs trust to provide for a child with special needs or a child who is receiving government benefits. The trust can hold money for your child’s care without affecting those benefits.
There are ways to circumvent the limitations of a will by creating trusts, setting up pay-on-death accounts, and ensuring a beneficiary is named on all accounts that permit them. Your will is an important component of a comprehensive estate plan, but it can’t do everything.
We would be happy to discuss the pros and cons of having a will and other options available to you as part of your overall estate plan.
Call our Elder Law Care Center NOW at 781-871-7526 to register for our next free educational elder law workshop. When you attend the workshop you will receive your $500 coupon to use in your initial meeting with one of our elder law attorneys because it is available for a limited time.
Patrick Kelleher is an author and Estate Planning & Elder Law attorney and founder of the elder law care learning center in Hanover, Massachusetts. Patrick has been teaching free educational workshops for over 10 years at his learning center and surrounding communities. Learn more at elderlawcare.com or follow Patrick Kelleher on Facebook because you will learn a lot! Offices in Hanover and Quincy. You can find Patrick’s new book “How to Avoid the Four Headed Monster” of Estate Planning & Elder Law on Amazon at https://www.amazon.com/How-Avoid-Four-Headed-Monster-Financial-ebook/dp/B084MB96SK
Our Elder Law Care Team www.elderlawcare.com serves families in Boston, Milton, Canton, Randolph, Dedham, Norwood, Westwood, Quincy, Weymouth, Braintree, Weymouth, Hingham, Norwell, Hanover, Hanson, Marshfield, Duxbury, Pembroke, Scituate, Hull, Cohasset, Abington, Rockland, Holbrook, Kingston, Carver, Plympton, Bridgewater, East Bridgewater, West Bridgewater, Plymouth, Barnstable, Sandwich, Wareham, Pinehills, Sharon, Avon, Brockton, Easton, Mansfield, Franklin, Newton, Wellesley, Needham, Bedford, Concord, Lexington including Suffolk County, Norfolk County, Plymouth County, Barnstable County, Bristol County, Middlesex County, Essex County, south shore, north shore, Metro-west suburbs, cape cod and surrounding communities.
