Married couples should consider individual wills vs a joint will

Married couples should consider individual wills vs a joint will

A last will and testament is an important document giving evidence to an individual’s intentions regarding the passing of property upon death. Failure to create a will can have unintended consequences whereby property inadvertently passes to unintended beneficiaries.

When it comes to a married couple making a will, they have the option of creating one joint will that covers both of them, or making two separate wills that cover them individually. However, there is a major caveat when it comes to a joint will for a married couple, that oftentimes causes more harm than good. Follow this advice to prepare everything you need for a last will and testament, and make the best decisions you can with your estate now, and for your surviving family after you’re gone. 


Do

Do be aware of all of your assets before planning your will

If you do not know the full extent of what you own, including real property, personal property, life insurance, bank accounts, brokerage accounts, stocks, bonds, other liquid assets, etc. it will be more difficult to craft a proper will and testament. Without knowing the full extent of your estate, you will not be able to make a fully educated decision regarding what you wish to leave and to whom. It is important to make a list of your assets so that you do not leave anything out. Your estate plan, including your will, should take into consideration the full extent of your assets. Also, having a clearly delineated list of your assets will assist your loved ones in identifying your assets after your demise.

Do understand the consequences of how assets are owned/titled

State law controls account ownership and title. It is important to understand that if an asset is held jointly with right of survivorship, for example, then the asset will pass to the joint owner on death—irrespective of what the will says about the disposition of that asset. A will applies only to those assets that do not have joint owners or named beneficiaries. If an account is held “ITF” (In Trust For), or “POD” (Payable on Death), for example, the funds in the account will pass automatically to the beneficiary listed on the account.

Many people incorrectly believe that if an account is held ITF, they have created a trust. Regardless of whether an account is ITF or POD, the beneficiary does not have any interest in the account until the owner dies.

Do know what it means to probate a will

Many individuals are confused as to the meaning of the word “probate.” It simply means, “proving a will.” A will must be proven to the court in order to be valid. State law governs the factors that make a will valid. Once a will is probated, it is a matter of public record, so that anyone can read the contents of the will.

However, if the deceased didn’t create a will, improperly created one, or there ends up being other complications with the estate and surviving family—it could take the will through a difficult posthumous probate process resulting in lengthy and expensive litigation in court. If you have family circumstances that might result in litigation upon your death, you should strongly consider a living trust, rather than a will. When assets are held by a living trust, it is not necessary to go through the probate process upon death. 

Do carefully decide on beneficiaries, an executor(s), guardian(s) of minor children

The benefit of having a will is that the testator (the person who made the will) can decide whom to leave assets to, how much to leave, and in what form. For example, if you have a disabled child, you can leave his or her share to a special needs trust created in the will rather than outright to the child. A trust agreement created in a will is called a ‘testamentary trust’ and will become effective after death, once the will is probated. 

It is important to decide whom you trust and who is capable of acting as your executor (the person who will be responsible for administering your estate). Finally, if you have minor children, the will is an opportunity for you to memorialize the individuals you wish to name as their guardians on your passing.

Do consider estate tax consequences when drafting your will

Failure to take State and Federal tax laws into account may result in your estate paying unnecessary estate taxes. It is important to discuss these considerations with the elder law or estate planning attorney that will draft your will.


Don't

Do not make a joint will

A joint will is a will drafted for two individuals, usually a husband and wife. Unfortunately, joint wills typically cause problems. A joint will is probated for the first person to die and then stays in effect until the second dies. However, circumstances often change after the death of the first spouse. One example is if the second spouse remarries. A joint will may cause problems for a couple, if one dies unexpectedly at a young age. Of course, a competent attorney can provide solutions for couples that already have a joint will in place.

Do not have a beneficiary who is also a witness

While the entire will won’t be invalidated if your beneficiary is a witness, his or her particular bequest can be nullified. It is important to sign the will in a proper manner to avoid the invalidation of a particular bequest or perhaps the entire will itself.

Do not try to create (execute) the will yourself

There are strict statutory requirements for executing a will. Further, if an attorney supervises the will signing ceremony, there is a presumption that the will has been executed in a proper manner. This is called the presumption of ‘due execution’. Have a qualified attorney draft the will and supervise its execution. This is money well spent.

Do not procrastinate

Life is unpredictable. If you procrastinate, there may be several unintended consequences. You may pass away prior to executing a will, or you may become incapacitated and unable to adequately understand and properly execute a will. Just do it.

Do not make assumptions about who will inherit your assets without a will

Don’t assume, for example, that if you are married, your spouse will inherit your entire estate without a will. For instance, New York provides that if you don’t have a will and if you have a spouse and children, your spouse will get the first $50,000 plus half of the balance of your estate, while the children will get the other half. Failure to leave your assets specifically to intended beneficiaries may result in your estate passing to individuals who you do not want to provide for.


Summary
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The above advice demonstrates the importance of taking time to reflect upon your assets, communicating with your loved ones, and understanding some of the considerations prior to having your will prepared by your attorney. With the proper consideration, time and advice, it is possible to establish a suitable testamentary plan that will likely avoid problems for your loved ones after your death.


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Ronald Fatoullah, Esq.New York Elder Law & Estate Planning Attorney

Ronald Fatoullah has been selected as one of the New York area’s “Best Lawyers” in the fields of Elder Law & Trusts & Estates for 9 consecutive years. He is also recognized as a ‘SuperLawyer’ and currently serves on the Executive Council of A...

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