“It’s so important to look at the lifetime side of estate planning, and think about the hazards of living a long life,” says Charlie Sabatino, director of the American Bar Association’s Commission on Law and Aging. Attorneys typically pull together all three, as do most of the online services.
These documents require hard conversations. Try to have them anyway. Another reason people delay is “they worry talking about death will upset their spouse and family,” says Al Cutturini, director of the Elder Law Project for North Mississippi Rural Legal Services. “But that’s not true. While it can be uncomfortable, knowing a parent’s wishes about everything from medical care to funeral plans is very reassuring,” he says. “It gives families an enormous sense of relief when they know what to expect.”
Every state is different. Laws can vary a lot. In some states, for example, spouses inherit everything if you die without a will. In others, they get only a child’s share. A few recognize oral wills if witnessed properly, while others don’t. “That’s why it’s important to work with a lawyer licensed in your state,” Cutturini says. “Even if you’re planning to move, I always tell clients to get a will right now, and then update it.”
You can write one any time, even if you’re sick. Hospitals aren’t the ideal place to make a will, but it’s better than not doing it at all. “It’s valid the minute it is signed,” Cutturini says.
Don’t cling to tradition. Many people still feel that they should name the oldest child — maybe even the oldest male child — as executor of the will and the agent to oversee their health care and money. It’s often a recipe for disaster, says Gary Bauer, professor emeritus at Cooley Law School at Western Michigan University. “Select your agents based upon their ability to manage your affairs, not birth order,” he says. Who’s the most organized and responsible? Who lives closest? Is there a natural leader, most likely to handle any conflict that arises later? And don’t be afraid to split duties. “Someone making end-of-life decisions has a very different role than someone distributing property after someone has passed,” he says.
Joint wills are a terrible idea. Experts caution couples against joint wills, and they aren’t even valid in some states. Such wills can restrict a surviving spouse from changing it later, even if his or her circumstances alter radically. Instead, many couples opt for “mirror” wills. These virtually identical documents allow each spouse to leave the estate to the other, and then to their children.
Either treat all children the same, or prepare for blowback. Leaving more to one child or leaving one out entirely, “almost guarantees dissent and challenges later,” Bauer says. “Feelings are hurt and balloon into legal hearings after death. Getting a smaller share than your siblings feels like a slap in the face in perpetuity.” If you do create an imbalance, talk that decision out with your children now, to avoid legal action later. And know that stepchildren aren’t automatically treated as children for legal purposes. For them to share in an inheritance, they must be specifically named.
It’s not one and done. Sometimes, these three documents can be done just once. But if there’s a major life event, such as a move to a new state, or a beneficiary or agent becomes ill, is disabled or dies, they’ll need to be revised.
Why I Stopped Stalling and Got My Will In Order