A Last Will and Testament memorializes your wishes on who gets your property at your death. While a will prepared with care and skill and reduce disputes, it does not constitute the sole tool in estate planning.
When you call upon a Will Attorney in Heber UT, you will discover that a will likely will not address all of your property and affairs. In your estate plan, you need to consider how much of your assets should be subject to probate or estate taxes and how to handle your affairs while you are still alive. Below, we profile some of the matters that a will does not affect or accomplish.
Property Passing Outside of Estate
Certain types of assets are excluded from your estate at death. Many types of legal documents other than your will designate beneficiaries of these assets at death. These instruments and assets include:
• Survivorship property. In a joint tenancy with right of survivorship, the surviving co-owner assumes ownership of the whole interest. You can hold these interests in bank accounts and real property. The tenancy by the entirety represents a form of joint tenancy with the right of survivorship applying to married couples. Unless your deed says otherwise, you and your spouse own real property as tenants by the entirety. Upon the death of one spouse, title to the whole automatically passes to the surviving spouse.
• Living Trust. A Heber Estate Planning Attorney may propose a living trust if you wish to keep assets from probate for tax or other purposes. In a trust, you convey your property to a trustee who holds the legal title for the benefit of others. Upon your death, the trust document determines who obtains the property contained in the trust. Since you do not individually own trust property at your death, it stays outside of your estate and does not become inherited pursuant to a will.
• Life Estates. With a life estate, you reserve for yourself the right to occupy the real property for your life. Upon your death, ownership property vests in the grantee (or remainder person). With one of our Heber Will Attorneys, you can consider creating a life estate as part of Medicaid planning or leaving property out of your probate estate.
• Life Insurance and Retirement. Under a life insurance policy, the insurer pays someone you designate as a beneficiary. As such, the rights of the beneficiary upon your death lie in contract rather than inheritance law. Your will does not affect a life insurance policy unless you name your estate as a beneficiary of it. Your retirement accounts operate on the same premise as life insurance with the treatment of beneficiaries.
What if There is No Parent for Your Child?
Your will can suggest a guardian or custodian for your children should your death leave them orphaned. Bear in mind that your nomination does not bind a court. Judges must ultimately decide whether a particular custodian or guardian serves the child’s best interests. While the court generally honors your wishes in a will, certain parties or agencies might object to the would-be custodian or guardian. Exercise care in vetting those you might propose.
Your Current Affairs
Your will takes effect only at your death. Whomever you name as executor or executrix of the will gets no authority to act on your behalf while you are living. To cover circumstances where you need someone to handle your affairs while alive, you need a power of attorney that one of our Heber Will Lawyers can prepare for you.
With a power of attorney, you designate someone to pay bills, receive deposits, sell or buy property or otherwise transact business in your name. Powers of attorney become important should you lose the physical or mental capacity to transact business.
Further, wills do not address what happens when you face serious or potentially life-ending illnesses. Talk with a Will Lawyer in Heber UT about advanced healthcare directives or “Provider Orders for Life-Sustaining Treatments”
Accomplishing Invalid or Impossible Ends
Your will does not serve as a device to keep property in your family forever. Utah law prohibits provisions in wills and deeds that outright prohibit or restrain “alienation” of property. That means, as a general rule, an owner has the right to sell or transfer property. However, if you contemplate or wish for a charitable or other nonprofit to have your property at death, speak with our Heber Will Lawyers about the proper language to ensure that your beneficiary uses the device as you intend.
Also, while wills can provide for the payment of funeral expenses, they do not serve as funeral planning devices. Due to the time to probate a will, your funeral will likely have already occurred.