|May 29, 2013|
Previously published by Nevada State Bank’s Blog, Two Cents on May 2013
Drawing up a will doesn’t sound like much fun. Divvying up possessions, planning for “final expenses,” aka funeral costs, which relative gets what assets - even creating a simple will can be stressful.
That’s one reason many of us put off visiting an attorney who specializes in creating wills, which can protect family assets and keep families together for decades to come.
The other reason people put off creating wills is because they don’t realize how important a will is. Setting up your assets for easy transfer from one person to another simplifies the legal process of probate - the process of assigning assets according to the deceased’s wishes - everything from heirloom jewelry to the family car.
“Do I Really Need a Will?”
Kristin M. Tyler, Esq., an attorney with Las Vegas-based Gordon Silver Counselors at Law, recently sat down to talk about creating a will to help reduce probate expenses and to work toward allowing the wishes of the individual creating the will to be respected and followed.
“A lot of people ask me if they really need a will - likely in hopes that I will say no and give them a pass on this important task,” Tyler stated. “However, the answer is YES - you certainly need a will, and depending on your family circumstances and the types of assets in your estate, you may need more advanced planning.”
Sitting down with your investment advisor, your bank representative, and your legal counsel, together you can organize asset information to create a defensible legal document that protects your family.
What Does a Will Do?
Tyler describes just what a will does as a legal document. She explained, “Your will provides valuation information for your loved ones upon your death. In your will, you will address four key issues: (1) nomination of an executor; (2) nomination of a guardian in the event of your incapacity; (3) nomination of a guardian for minor children; and (4) the disposition of your property.”
She continued, “The executor’s job is to handle your final affairs and to probate any assets that need to go through probate. It is important to note that, in Nevada, a will won’t help you avoid probate. Depending on your circumstances, you may need a revocable trust if avoiding probate is a high priority.”
Tyler went on to explain the importance of naming a guardian in any will you draw up. “We [Gordon Silver] always have our clients nominate a guardian for themselves in the event of incapacity during life. You will make that [guardian] nomination in your will. Proper estate planning is as much about protecting yourself in the event of incapacity as it is about planning for death.”
What about the Children?
One thing a will does is provide for your children in the event that you’re no longer around to help them down the road to a happy, more secure life. “If you have minor children, making a will is even more crucial, as this is the document where you will tell the court who should care for your children,” explained Tyler.
“You can nominate the same person to serve as guardian of the person and the estate of the child(ren). Alternatively, you can separate the roles, and nominate one individual to be guardian of the person of the child (handle the daily care of the child), and another individual to be guardian of the estate of the child (handle the financial matters).”
She concluded, “Finally, the will directs how your property shall be distributed to your beneficiaries upon your death. The property will be given to the beneficiaries once bills are paid and any creditors are dealt with.”
What about Online and Do-It-Yourself (DIY) Wills?
There are many websites that enable you to create a simple will for a few dollars, all from the comfort of your computer chair. These DIY wills are inexpensive - sometimes costing less than $100 for a simple will.
The problem with DIY and online wills is that they’re based only on the information you provide, warned Tyler. The information may be incorrect. It may be the wrong information. It may be out-of-date. Do-it-yourself wills may leave heirs open to a variety of avoidable problems.
“More and more people are trying the do-it-yourself approach of buying online kits to make their will. While this may work great for some people, some cases I have encountered have resulted in giant disasters,” Tyler warned. “I’ve seen DIY wills where beneficiaries signed as witnesses, which resulted in an invalid will. In another case, no one dated the will, and we spent a small fortune hiring an investigator to find the witnesses so we could depose them about when the will was signed.”
She continued, “I have also seen wills with multiple sections distributing property - each leaving property to different beneficiaries. Those wills end up in [Probate] Court for the judge to decide how the person intended to leave their property.”
Tyler strongly recommended, “Proceed with caution if you want to try the DIY route - there are a lot of technicalities in a properly prepared and executed will. The best way to plan for your estate, and the ones you love, is to work with an experienced, estate planning attorney.”
No one wants to think about creating a will. However, working with an experienced attorney has the potential to save survivors probate and legal expenses that can deplete family assets.
Where there’s a will, there’s a way - a clearly defined, defensible way to assign responsibility, to give assets to survivors, and to lower the cost of executing a will.