Do I need more than a will?

Many people believe that if they have a will, their estate planning is complete, but there is much more to a solid estate plan. A will typically does not cover all authority and instruction that is needed at your death.  In addition, the will gives no authority to others to handle your affairs if you are incapacitated.

 

What is a Will and What Does It Do?

A Last Will and Testament is a legally-binding statement directing who will receive your property at your death. A will also appoints a legal representative (called an executor or a personal representative) to carry out your wishes.

So if you have a Last Will and Testament, all your assets will be managed and disposed according to your wishes, right?  Probably not.  People often misunderstand what a will does which can have a big impact on how assets are managed and disposed of for you and your family.

The Will is Only Effective Upon Death

Your Will directs your Personal Representative on how to conclude your final affairs and to whom to distribute assets upon your death.  However, the Will does not dictate how your assets will be used if you become incapacitated and you can no longer manage assets yourself.  For this purpose, you need other legal documents such as a Power of Attorney or Trust.

The Will Does Not Give Anyone Authority to Make Health Care Decisions for You

If you become incapacitated, a Health Care Representative will make health care decisions for you.  Unless you have appointed a Health Care Representative in writing or executed a Health Care Power of Attorney, a team of individuals designated by state law will make health care decisions for you.  As this team may not be those you would want in a position of making health care decisions and can lead to conflicting decisions, you should appoint a Health Care Representative in writing.

The Will Typically Distributes Only a Portion of Your Assets

Your Last Will and Testament determines how your probate assets are distributed.  Many types of property or forms of ownership pass outside of probate.

Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate and aren’t covered under a will.

Oftentimes, if an individual desires to update his or her beneficiaries, change of beneficiary forms for life insurance, IRAs, and the like will need to be completed to coordinate with the beneficiary changes in the will.  The Will does not direct the disposition of joint assets or assets with a beneficiary designation.  Life insurance policies, IRAs, or other assets with beneficiary designations will be distributed to the persons listed on the beneficiary form no matter who is designated beneficiary under your Will.

 

The Will Can Dictate How to Pay Your Debts

The main purpose of a will is to direct where your assets will go after you die, but it can also be used to instruct your heirs how to pay your debts. While generally heirs cannot inherit debt, debt can reduce what they receive. Spelling out how debt should be paid can help your heirs.

If someone dies with outstanding debt, the executor is responsible for making sure those debts are paid. This may require selling assets that you would like to leave to specific heirs. There are two types of debts you might leave behind:

  • Secured debt is debt that is attached to a piece of property or an asset, such as a car loan or a mortgage.
  • Unsecured debt is any debt that isn’t backed by an underlying asset, such as credit card debt or medical bills.

When you leave an asset that has debt attached to it to your heirs, the debt stays on the property. Your heirs can either continue to pay on the debt or sell the property to pay off the debt. If you believe this would cause a burden for your heirs, you can leave them assets in your will specifically designated to pay off the debt.

With unsecured debt, although your heirs will not have to pay off the debt personally, the executor will have to pay the debt using estate assets. You can specify in your will which assets to use to pay these debts. For example, suppose you have a valuable collectible that you want one of your heirs to have. You can specify that the executor use assets in your bank account to pay any debts before selling the collectible. And if you want to leave liquid assets, like a bank account, CD, or stocks to an heir, you should designate in your will what you would like your executor to use instead to satisfy debts.

Not everyone needs to spell out how to pay debt in a will. If your debt is negligible or your entire estate is going to just one or two people, it may not be necessary.

Executing a Last Will and Testament is a beginning step to planning, but is a small cog in a comprehensive plan.  Other documents are necessary to ensure your team has the authority to act for you when the time comes and that assets are divided among those you truly desire and in the proportions you want.  Without a complete plan, your needs could go unmet or your loved ones may be forced to proceed with an expensive, time-consuming process to obtain a guardianship through a Court.   Furthermore, an incomplete plan can result in unanticipated, unequal distribution of assets at your death leading to hurt feelings or a family left in turmoil.

What other Documents Do I Need?

Power of Attorney

A power of attorney allows a person you appoint — your “attorney-in-fact” — to act in your place for financial purposes when and if you ever become incapacitated. In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

Medical Directives

A medical directive may encompass a number of different documents, including a health care proxy, a durable power of attorney for health care, a living will, and medical instructions. The exact document or documents will depend on the choices you make.

Both a health care proxy and a durable power of attorney for health care designate someone you choose to make health care decisions for you if you are unable to do so yourself. A living will instructs your health care provider to withdraw life support if you are terminally ill or in a vegetative state. A broader medical directive may include the terms of a living will, but will also provide instructions if you are in a less serious state of health, but are still unable to direct your health care yourself.

Funeral Planning Declaration

A Funeral Planning Declaration includes instructions concerning your funeral or celebration of life.  It will designate who will be in charge of carrying out your instructions and also your choice of what should be done with your remains.

Even if you’ve created an estate plan, are you sure you included everything you need to? There are certain provisions that people often forget to put in a will or estate plan that can have a big impact on your family.

 

Four Provisions People Forget to Include in Their Estate Plan

Alternate Beneficiaries

One of the most important things your estate plan should include is at least one alternative beneficiary in case the named beneficiary does not outlive you or is unable to claim under the will. If a will names a beneficiary who isn’t able to take possession of the property, your assets may pass as though you didn’t have a will at all. This means state law will determine who gets your property, not you. By providing an alternative beneficiary, you can make sure that the property goes where you want it to go.

Personal Possessions and Family Heirlooms

Not all heirlooms are worth a lot of money, but they may contain sentimental value. It is a good idea to be clear about which family members should get which items. You can write a list directly into your will, but this makes it difficult if you want to add items or delete items. A personal property memorandum is a separate document that details which friends and family members get what personal property. You can reference the document in your will and it will be legally binding as long as it meets statutory criteria. This memorandum is helpful to leave instructions for your heirs to avoid confusion and bickering.

Digital Assets

More and more we conduct business online. What happens to these online assets and accounts after you die? There are some steps you can take to help your family deal with your digital property. You should make a list of all of your online accounts, including e-mail, financial accounts, Facebook, Mint, and anywhere else you conduct business online. Include your username and password for each account.  Also, include access information for your digital devices, including smartphones and computers. And then you need to make sure the agent under your durable power of attorney and the personal representative named in your will have authority to deal with your online accounts. 

Pets

Pets are beloved members of the family, but they can’t take care of themselves after you are gone. While you can’t leave property directly to a pet, you can name a caretaker in your will and leave that person money to care for the pet. Don’t forget to name an alternative beneficiary as well. If you want more security, you can also set up a pet trust. With a pet trust, the trustee makes payments on a regular basis to your pet’s caregiver and pays for your pet’s needs as they come up.


 

If you need further help understanding Indiana estate laws, contact Stinson Law Firm for assistance. Our Indianapolis estate attorneys will guide you through the steps you should take to protect those you love, whether they are your parents or other elderly family members.

How our Indianapolis Estate Planning Attorneys Can Help

If you reside in Indianapolis, IN, and require help with estate planning, the legal team at Stinson Law Firm is here to assist you. Our Estate Attorneys in Indianapolis have supported numerous residents in navigating the estate planning procedure. Whether you aim to draft a will, set up a trust, or manage probate intricacies, our skilled estate attorneys are available to support you throughout the entire process. At Stinson Law Firm, we recognize the significance of safeguarding your assets and ensuring your loved ones’ welfare. Our team is committed to offering personalized and thorough estate planning services tailored to your specific requirements and objectives. From creating essential documents to offering strategic guidance, our Estate Attorneys in Indianapolis are devoted to streamlining the estate planning process for you. We prioritize clear communication, transparency, and client satisfaction to guarantee that your desires are executed effectively, providing you with peace of mind. Reach out to us now to arrange a consultation and embark on securing your legacy with assurance.

Contact the Stinson Law Firm at 317-622-8181 to create your comprehensive estate plan.

Let our estate planning attorneys provide you peace of mind with care and compassion.

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