Simple Wills Often Can Tackle Complex Personal Issues

When you have drafted as many Wills as I have and then, later, handled estates for some of them it can become clear that simple wills may carry with them complex issues that are all but invisible to the uninitiated reader. One reason for complexity is the fact that underlying relationships, generally speaking, cannot adequately be described on paper. Another is the difficulty dealing with the “what if” questions.

Here are some examples. “What if” Mary, your daughter and the Executrix named in your Will, dies before you and no one else can readily be trusted to handle your estate? Do you want to consider alternatives? Are the “backups” acceptable? Are those persons you would name ready, willing and able to serve? I do recommend that Successors be named in documents in all cases if possible.

Sometimes an adult child is named Executor because he/she is believed to be good with finances. He/she might be an accountant or a respected financial advisor. Another family member or close friend is then named as Health Care Power of Attorney since he/she is a physician or nurse. This kind of choice is often not a bad division of responsibilities. In any case there should be backup or successors for each position. It is not possible to predict the future.

Positive and negative feelings can come into play. More often than you would think persons approaching drafting a Will are concerned that someone who is not named Executor or Power of Attorney or Health Care Power will be offended by being excluded. Conversely, Will
Makers (Testators) sometimes hesitate to ask recognizing that the person he/she really wants to serve may be overcommitted or live too far away. The distance factor does not always determine availability. As someone long ago told me “my power of attorney is in Sweden. We can communicate by internet. It is not a problem.”

When there are two adult children, both capable and willing, there may be another problem. Often parents want to name both as Co-Executors. My experience in recent years is that banks and financial institutions now often discourage both Joint Powers of Attorney and Co-Executors. One reason could be fear of disagreement between the two or possibly simply convenience. In the recent year or two I have begun to recommend one person as Executor or Power of Attorney and the second as Successor with clear language in the document itself stating that the Executor or Agent has the power and ability to delegate authority to the Successor in writing. This is for persons who agree and who work together. It can be a favorable alternative and an opportunity for shared responsibility.

What is the worst circumstance? In my experience the worst possibility is to take two adult children who never got along and name them both to serve because “if they are forced to work together they will work it out.” I know from experience with more than one estate that it does not work its way out and can make the estate administration a potential nightmare for both of them.

What are some of the other issues to look for? Here are some.

  • Searching for the sources of funding. It does not do anyone a favor to draft a Will or a Trust with provisions regarding payments to be made when the estate will not have the funds to accomplish the objectives. Liquidity is important. When drafting a Will or Trust it is important to keep in mind what funds are available for what purposes.
  • Consider that fact that not all assets are probate assets. Not all assets will go by Will. In determining the fairness of distributions consideration should be given to the entire estate, not just the probate estate. An elder law attorney or estate attorney drafting the Will should discuss with the Will Maker (Testator) the fact that many estates and probably his/her own have considerable assets that do not pass by Will. IRA’s, 401(k)’s and similar assets pass by beneficiary designation, not by Will, unless the estate is the beneficiary. Life insurance passes by beneficiary designation. If the Testator/Testatrix wants even distribution to children these designations need to be taken into account.
  • A form book and a software package cannot describe the family dynamics or determine the Testator/Testatrix’s goals. They are personal and important.

About the Author Janet Colliton

Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.

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