A will is the most well-known, yet often misunderstood, estate planning tool. The purpose of a will is to give the testator (the person executing the will) the ability to make five important decisions.
- Naming Your Executor (don’t indent these)
The executor is the person who will be responsible for making all estate administration decisions, including but not limited to filing tax returns, making funeral arrangements, paying outstanding debts, and distributing whatever assets remain. Choosing an executor is a very important task that should not be taken lightly.
Similarly, accepting the role of executor should also not be taken lightly. An executor has fiduciary duties that, if not performed adequately, could lead to liability. One of the services I provide is acting as counsel for executors during the period of estate administration.
- Disposition of Tangible Personal Property
"Tangible Personal Property" are a person’s possessions, including jewelry, furniture, clothing, automobiles, artwork, and other household items. The disposition of these assets is often a cause of interfamily strife and litigation, especially when personal property is to be "divided equally as the beneficiaries agree." I recommend giving the testator authority to make gifts by memorandum.
- Disposition of Your Estate
Depending on the value and type of your assets, a will may be the appropriate place to state how you want your assets distributed. This is especially true if you do not own real estate and the value of your possessions is less than $100,000. When used in conjunction with a living trust, a will contains a "pour over" provision, which acts as safety net in the event an asset is not properly titled at the time of death.
- Naming of Guardians
For parents with minor children, the naming of guardians in the event of their deaths is perhaps their most important estate planning decision. As with naming an executor, care should be taken when naming guardians of minor children and care should be taken before agreeing to act as the guardian of minor children. Often a parent's initial choice as guardian may be problematic for reasons they had not considered.
- Exercising a Power of Appointment
Exercising a power of appointment may be an option for clients who are beneficiaries of a trust established by their parents or grandparents. A current beneficiary of an irrevocable trust should ask the trustee whether they have a power to appoint the assets of their trust, and if they have such a power, ask how such a power is exercised. This power to appoint trust assets may offer unique planning opportunities and should be considered in the context of your overall estate plan.
Many clients ask about “living wills”, which is a written statement to be considered by your attending physician in the event you are in a terminal condition with no hope of recovery. However, living wills have a limited scope, and requires that your medical condition match the requirements in the Illinois Living Will Act to be effective. As long as clients have a friend or relative willing to make medical decisions, I instead recommend using a Health Care Power of Attorney instead.