By JAMES W. COBB, PARTNER AT COBB LAW FIRM LLC
Published: September 20, 2016
I frequently give seminars on estate planning and answer questions during consults that have the most basic estate planning question, “Do I need a Will?” Typically, the simple answer is yes. My goal in an estate planning consult is to listen to the person in front of me, understand what their goals are, and convey to them what estate planning vehicles can get them where they want to go.
You’ve worked hard for what you have, give it to who you want.
I think it is a bit of a stretch to think that everything you have is going to escheat to the state if you don’t have a will, however, why leave to a set of systematic rules (statutes) to determine who gets what. I find a lot of peace of mind and so do my client’s, to know that no matter how insignificant it may seem, my grandfather’s knife will go to one of my children. This might seem like a silly example, however, it is important that you designate who gets what.
At a minimum, your will is literally your Last Will and Testament. Set out who gets the family heirlooms, the cars, the house, the boat, etc. Typically, specifically devised property will be considered non-probate assets. This is an important estate planning goal and it can easily be achieved.
Who is going to take care of little Johnny?
If you have a new little one or ten little one’s then you should be concerned with who will take care of them if you and your wife were to pass. Your Will is the perfect opportunity to set forth who will be the guardian(s) of your children. Often, it is advisable to set forth a series of guardians in case one is to pass before your death and is not around to take care of little Johnny. Odds are that someone in this chain of guardians will be around and able to take over the role of mom and dad and assure that the children are provided for.
This is obviously a decision that should not be taken lightly. Please take the time to be thoughtful and consider family members or friends that will take care of your little ones in a way that you would approve. You might also want to run this by those who you chose to serve in this role…. I’m sure they would appreciate the heads up.
Taxes, taxes, taxes…..
There are a dozen different reasons you should have a Will, not the least of which are for tax concerns. A properly drafted will can distribute property in a manner that can be consistent with state law and avoid taxes. If your estate is flush with assets and cash, then you can even have the estate pay for part of the tax burden that may be felt by those recipients who may face a tax burden. It is also important to realize that what your estate is subject to a tax burden and the more that is gifted away, the less of a burden your estate will face.
Give to charity.
Often, I will have individuals that have considerable net worth. Don’t forget that there are many charities that could really benefit. Many of us have churches, St. Jude’s, Boys and Girls clubs that we care deeply about and would love to see their work continue. Remember, your gift to them after death could positively affect hundreds of others.
Want to leave someone out?
With the elective share statute in Tennessee, you won’t likely be able to cut your wife out of the Will and leave it all to your mistress but sometimes you might have certain individuals that you may stand to inherit and you may want to specifically leave them out of the equation.
Family can be tough and the relationships with have with some of our family members can be even more difficult. You aren’t required to give your estate to those who you would rather not. If you’ve decided to leave someone out, then specifically do so. Make your wishes and intent crystal clear to minimize a potential challenge of your Will.
Seriously, what good is it to accumulate all of this stuff, if you can’t have a little dead-hand control. Do not wait, make a Will. State your intentions while you are alive. Let’s face it, once you are dead and gone, I doubt you are going to be very worried about how long and awful your probated estate will be, however, I am certain that a little bit of simple estate planning will save the people you care about a lot of heart-ache, heartburn, and attorney fees.
The above article is intended to educate, by providing general principles and concepts based on Tennessee law and is not intended as legal advice. Please refer any questions or legal needs to a state licensed attorney.