I can’t believe that it took me leaving private practice to hear about “National Make-a-Will Month.” Apparently, in addition to being the month when many students (mine included) return to school, August is National Make-a-Will Month. As an Estate Planning professional, I think having a month dedicated to encouraging individuals to make a Will is spectacular! I support this idea and will do my best to spread the word and encourage others to do the same.
According to a recent study conducted by Caring.com, approximately 2/3 of Americans don’t have a Will, with over 40% of them citing procrastination as their top reason for failing to have this necessary legal document. That statistic alone blows my mind. Although this blog often focuses on Revocable Trusts and the flexibility, continuity, and protections that they provide, Wills play a vital role in Estate Planning. Many Trusts and Estates practitioners remind individuals that Trusts avoid the probate process, which can be lengthy and expensive in some states, but even a Trust-based plan needs to include a Will. Many folks believe that if they have a Revocable Trust, then they need not have a Will. Nothing could be further from the truth.
Let’s start with the basics. If an individual dies without a Revocable Trust or Will, that’s referred to as dying intestate. Dying intestate occurs often enough that states have created statutes to address the issue. These state statutes determine distribution of your assets without any input from you or your loved ones. Many states’ intestacy laws give only a portion of assets to the surviving spouse and give the remainder to descendants, without regard for the specific needs of the individual recipients. This includes those who may have special circumstances, such as receiving needs-based governmental benefits. If you die intestate, then your estate will likely need to go through probate. An individual will petition a court for appointment as executor, personal representative, or administrator, which will give that individual legal authority to collect and distribute your assets pursuant to the distribution scheme in the statute. That individual likely will need to retain an attorney to understand and navigate the complex court system. A judge oversees the many steps involved in this public probate process. As the probate process is public, otherwise private information about the nature and extent of the individual’s assets and the beneficiaries of those assets would be divulged. This could allow nosy neighbors, predators, and others to pry into the lives of the individual and their loved ones.
Revocable Trusts provide the solution to the probate issue. They allow the family to forego the probate process altogether. The Trustor creates a Revocable Trust and appoints a Trustee to step into their shoes upon their death and administer the Trust without court intervention. In this way, properly funded Revocable Trusts avoid probate. If, however, the decedent died with just one asset titled in his or her individual name then that asset needs to pass through probate. Here’s the first reason that even if you have a Revocable Trust, you need a Will. Despite the best efforts of the client and the attorney who drafted the Estate Plan, assets sometimes remain titled in the name of the Trustor at death. In most states, the only way to ensure that these assets end up in the Revocable Trust is through the “Pour-over Will” that “pours” any assets passing through probate “over” to the Trust. The Will acts as a backstop to the Revocable Trust. In addition, if a court declares the Revocable Trust invalid for any reason, the Will can include provisions that direct passage of the assets in the same manner as was directed by the Revocable Trust.
Second, certain states allow their residents to pass tangible personal property through a separate writing without the formalities required of a Will. These documents need to comply with the statutory requirements for validity, but generally, these writings need only reference the tangible personal property sought to be distributed, the desired recipient of the property, and have the testator’s signature along with the date signed. Usually, states allowing a separate writing to pass tangible personal property require that the Will contain a direction regarding passing the tangible personal property according to such document. These states typically do not have companion statutes that allow a Revocable Trust to reference the memorandum.
Finally, anyone with minor children needs to have a Will. The Testator names guardians for the minor children in a Will, nowhere else. For most parents, deciding who will raise their children should they die while the children remain minors tops the list of important considerations for an Estate Plan. Again, the Revocable Trust cannot contain this nomination. The Will remains the sole Estate Planning document under which the Testator may nominate a guardian for minor children.
Remember, most of the time, the Revocable Trust represents the gold standard in Estate Planning. They contain flexibility, provide for continuity, avoid probate, and allow the Trustor to include protections and/or restrictions for their beneficiaries. It’s rarely wrong to create a Revocable Trust. Of course, the Trustor needs to ensure that they fund the Trust, otherwise, the assets pass through probate in accordance with the Will; however, that doesn’t negate the importance of the Will. As this article has demonstrated, Wills play an important role in a comprehensive Estate Plan. A Will serves as the sole legal document to accomplish certain things and failing all else, the Will serves as a backstop to the Revocable Trust. If you have questions about your Estate Plan, how it works, or whether it’s appropriately structured, take advantage of “National Make a Will Month” and reach out to a qualified Trusts and Estates practitioner to review and update your plan.
Tereina Stidd, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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