Estate Planning Wills Preparation

If a person was a member of a labor or trade union they may have had a pension or annuity plan in preparation for retirement. In the event the person dies, named beneficiaries such as a spouse or dependent child may receive financial assistance from union death benefits. This can include ongoing monthly payments known as survivor benefits or a lump-sum payment. The benefit amount tends to vary based on the union and the employment status of the person who died, such as if they were already retired or working part-time or full-time. 

Some unions extend these death benefits to burial and funeral benefits. Union partnerships with specific funeral homes can provide surviving beneficiaries with more affordable pricing and special services accessible only to union members. If the person died in a work-related accident, some unions also cover burial expenses. Since death benefits vary among different unions, the best practice is to contact the union’s local chapter where the person who died maintained membership and ask for assistance in claiming benefits. 

Ultimately, union death benefits are a source of financial and practical support for the family of the person who died. These benefits provide monetary support for honoring the legacy of the person who died and can provide ongoing support in the care of the surviving family. Gaining more insight into which death benefits are available and how to claim them can ensure that responsibilities like making final arrangements or covering general costs are less stressful to manage after the loss. 

Sources

“Claiming Pesions, Veterans, and Other Benefits: Information for Executors and Beneficiaries.” Nolo. https://www.nolo.com/legal-encyclopedia/claiming-pensions-veterans-other-benefits-32435.html 

“Union Benefits for Survivors.” Empathy. https://www.empathy.com/benefits/union-benefits-for-survivors 

Gifts in a will are known as bequests, and there are four different types. When someone is named as a beneficiary, the assets that are distributed to them are categorized into one of these four types of bequests. They include:

• Specific bequests 
• General bequests
• Demonstrative bequests 
• Residuary bequests 

When a bequest names a specific asset and the beneficiary who should receive that asset, it is known as a specific bequest. This type of gift might range from a cherished personal item or even a house. It is becoming increasingly common for digital assets to be named. The person who died, known as the testator, can generally name whatever they want in a specific bequest as long as they own the asset. 

General bequests are most frequently monetary gifts such as cash, but could include cryptocurrency. The testator may choose to give a specific amount of money to a beneficiary, but may not be specific enough to the source account where the funds are located. This means that the money can be taken from different sources in the estate as long as the indicated amount is provided to the beneficiary. 

When the source of the money is indicated, it is considered a demonstrative bequest. For example, if the testator indicates that the sum of money should be retrieved from a specific checking account or cryptocurrency wallet, this would be a demonstrative bequest. The testator may also indicate that certain assets can be sold and the proceeds from those sales can be used to pay the designated amount to their beneficiary. 

Sometimes the testator might indicate that specific beneficiaries can receive whatever assets remain after all debts, expenses and gifts have been paid and distributed. This is considered a residuary bequest and means that those named beneficiaries receive any assets that are not already accounted for in other bequests. In some states, any specific gifts that were intended for named beneficiaries will be moved to residuary beneficiaries if the original beneficiaries die before the testator. However, state laws regarding residuary bequests can vary, so it’s important to check what is applicable where the testator resides. 

There is a wide variety of assets that can be distributed to beneficiaries and designated as each of these gift types. Each type of gift in a will has a specific purpose and clarifies how the associated assets should be distributed to the beneficiaries. Understanding the differences between these types of gifts ensures that those who are navigating estate planning can accurately communicate their last wishes to their intended beneficiaries through their will. 

Sources

“Gifts in a Will: Early Inheritance & Gift Tax in Canada”. Willful. https://www.willful.co/learn/all-about-specific-gifts 

“Personal Gifts In a Will”. Legal Match. https://www.legalmatch.com/law-library/article/personal-gifts-in-a-will.html 

“Types of Gifts In a Will”. Empathy. https://www.empathy.com/will/types-of-gifts-in-a-will 

A legal minor typically should not be named as a beneficiary in a will or other legal documents as the sole method of ensuring the distribution of assets. However, every state has its own estate and property laws, and the definition of a legal minor varies between states. By definition, legal minors are children who are unable to handle legal matters or enter into contracts since they have not reached the age of majority (typically 18 -21 years). Due to these limitations, legal minors cannot receive assets through legal documents or contracts except through trusts. 

The best way to ensure that legal minors receive assets is to name them as beneficiaries in a trust. Legal minors can be listed as beneficiaries on a trust, but not in legally enforceable documents such as wills, because trustees manage all of the assets in the trust and distribute them according to the terms of the trust. Also, trustees handle these distributions on behalf of the beneficiaries named in the trust. This means the trust’s beneficiaries never participate in financial or contractual transactions. 

Although it is possible to list a legal minor as a beneficiary for some estate planning components, such as life insurance, this does not mean the minor will receive the assets or benefits following the parent or guardian’s death. A legal minor listed as a beneficiary in these contexts will typically have an adult custodian responsible for managing the assets until the minor has reached the age of majority. Thus, a legal minor will not receive any proceeds unless they have attained the age of majority by the time the death has occurred and the will has been filed for probate. 

While most experts recommend transferring assets to minor children through a trust, every situation is different, and additional considerations may need to be addressed. It is highly encouraged to work closely with a legal professional to ensure all estate planning components are complete. Additionally, working with legal professionals specializing in estate planning will guarantee that the guidance and actions taken are specific to the estate’s circumstances, which is especially helpful for those with extensive assets or who need assistance navigating complex arrangements. 

Sources

“Can a Minor Be a Beneficiary?” SmartAsset. https://smartasset.com/estate-planning/can-a-minor-be-a-beneficiary 

“Beneficiary Strategies: Your Children”. Fidelity. https://www.fidelity.com/life-events/estate-planning/beneficiary-strategies/child 

“Can a Minor Be a Life Insurance Beneficiary?” Aflac. https://www.aflac.com/resources/life-insurance/can-a-minor-be-a-life-insurance-beneficiary.aspx 

In estate planning, an executor is responsible for ensuring that the last wishes of the person who died are carried out according to the terms listed in their will. The executor is responsible for handling the responsibilities associated with the estate, including the probate process, and managing the distribution of assets. Sometimes, an executor may also be referred to as a personal representative.

The role of the executor comes with many responsibilities and expectations, so it is important to appoint a trusted individual to fulfill these duties. Some of the responsibilities associated with being an executor can include:

• Accounting for all assets 
• Gathering and organizing important documents
• Taking inventory and evaluating assets 
• Determining if probate is necessary 
• Filing the petition with the probate court
• Managing assets during the probate process
• Ensuring outstanding taxes and debts are paid 
• Contacting government agencies 
• Handling disputes
• Publishing an official notice to creditors 
• Distributing assets to beneficiaries
• Closing the estate 

Individuals typically become executors in one of two ways. It is common for the person who died to name an executor in their will. If someone dies and they don’t have a will or their will is invalid, the probate court may name someone to become the executor. Additionally, if the person who died has named an executor, the court has the power to override the current executor and name someone else. This can only be done if the named executor meets any of the following criteria: 

• Previous criminal history 
• Mental illness 
• Substance use 
• Considered a legal minor 

Ultimately, the executor’s role is crucial in managing the estate of the person who died. Due to the volume of expectations and the importance of this role, it is vital to select an individual who is trustworthy and has the time to focus on assuming all of the responsibilities. Whether seeking to select an executor or learning how to navigate the tasks associated with the role, working closely with a legal professional for guidance is highly recommended. 

Sources

“Executor of Estate: What Do They Do?” Forbes. https://www.forbes.com/advisor/mortgages/real-estate/executor-of-estate/ 

“What Are the Full Responsibilities of a Personal Representative?” Bogin, Munns, & Munns. https://www.boginmunns.com/faq/what-is-the-role-of-an-executor-in-estate-planning 

You can plan for what happens to your digital assets when you die by completing several steps, including:

• Take an inventory of your current digital assets
• Review the terms of service
• Secure and backup digital assets using the appropriate storage method
• Provide your consent in legal documents so your beneficiaries can access these assets 

The regulations and laws surrounding certain types of digital assets are still relatively new, so it is important to remember to revisit your plans consistently in case any changes are needed. 

The first step in planning for your digital assets is to take inventory of all of the digital assets that you currently own. This includes accounts, contact lists, collections, websites and more. It is essential to list all of your digital assets on this list since your beneficiary may not be aware of anything that isn’t on the list. As you add assets to the list, you should also note any login details you need to share with the beneficiary. Potential digital assets that you may want to list can include: 

• Email accounts
• Social media accounts
• Online bank accounts
• Credit card accounts
• Photo and video storage accounts
• Utility accounts 
• Charity or non-profit organization accounts
• Subscription services 
• Contact lists 
• Cryptocurrency keys and associated digital wallets
• Digital collections for assets such as NFTs
• Cloud data 
• Websites 
• Domain names 
• Blogs 
• Online stores or marketplaces 
• Files and other digital intellectual property

Additionally, you should be aware that although you will document all of your digital assets on this list, not all will be passed to your beneficiary through your will. Digital assets you don’t fully own or are not worth money, such as domains or social media accounts, cannot be included in your will. However, you should still transfer them to your beneficiary or someone you trust to maintain them after your death.  

Reviewing and understanding the terms of service for your digital assets is also important. While you may have paid for access to a digital asset, that doesn’t always mean you own it. Sometimes, what you have purchased is a nontransferable license. If this is the case, you might not be able to share this asset with your beneficiary since you don’t fully own the asset. 

After listing your digital assets and reviewing their terms of service, they should be secured and backed up using a reliable storage method. You may use options such as an online storage platform or a private server. You can provide your attorney access to it for additional protection and ease of access. Finally, you will need to work with your attorney to ensure that you provide consent for access to these digital assets in the proper legal documents. This includes providing consent for your attorney, beneficiaries, or other trusted individuals to have access to your assets following your death.  

Sources

“How to Prepare a Digital Estate Plan”. U.S. Bank Wealth Management. https://www.usbank.com/wealth-management/financial-perspectives/trust-and-estate-planning/digital-estate-plan.html 

“Leaving Digital Assets Through Your Will”. Quicken. https://www.willmaker.com/legal-manual/wills/leaving-digital-assets-through-your-will.html 

“Estate planning for the digital era”. Fidelity. https://www.fidelity.com/viewpoints/wealth-management/estate-planning-for-digital-assets 

“Digital Property Frequently Asked Questions”. American Bar Association. https://www.americanbar.org/groups/real_property_trust_estate/resources/estate-planning/digital-property/ 

Provisions for pets in your will should include a designated caregiver to take responsibility for them, a clear indication of financial support through a pet trust, and instructions or requests for their care in your absence. These components are included in the pet clause of your will. Each of these components should be explained in detail in your will to reduce the risk of misinterpretation. 

Designating a caregiver is important since this individual is usually responsible for managing the financial support that you have provided for the care of your pet. This individual will ultimately become responsible for the well-being of your pet after you have died, so it is crucial to select a trustworthy person who can provide the love, attention and support necessary for proper pet care. You should have an open conversation with the designated caregiver to ensure that they are willing and capable of taking on this responsibility in your absence. You can also use this time to communicate any specific requests or instructions that you would like them to be aware of in regard to your will.

Your will should also clearly indicate any financial support that will be provided after your death. Consulting with an estate planning attorney can help you navigate the process of establishing a pet trust. The pet trust will be used to manage funds for your pet’s care, such as vet expenses, supplies, food and any other important needs that have an associated cost. By establishing a pet trust, you have created a legal arrangement that will ensure that your financial support is only used for the indicated purposes of pet care. If your pet dies, the remainder of the funds in the trust will be given to the designated caregiver as the beneficiary. 

Additionally, you should outline information about your pets that would be important for other people to know about when they take action on your will. This can include the names of your pets, their healthcare needs, important instructions for their care, or even details about the level of interaction and attention that they’re accustomed to receiving from you. Any information that will help the designated caregiver provide quality care for your pets should be included. After you have established your will, you should review it and update it on a regular basis if there are any significant changes to your expectations or circumstances. 

Sources 

“Pet guardians: How to provide for pets in your will”. FreeWill. https://www.freewill.com/learn/what-is-a-pet-guardian 

“Providing for Your Pet’s Future Without You”. Humane Society. https://legacy.humanesociety.org/documents/h/humane-society-of-the-united-states/pets_in_wills_factsheet.pdf 

“Including Animals in Your Will”. Animal Legal Defense Fund. https://aldf.org/article/including-animals-in-your-will/ 

“Estate Planning for Pets”. NOLO. https://www.nolo.com/legal-encyclopedia/estate-planning-pets.html 

Whether your state will recognize a will depends on state law. Even if you are using a state-sanctioned statutory form or a form that you downloaded from a reliable source, the will must be properly executed in the state where you live in order to be recognized as valid. States vary as to the number of witnesses required, whether the will needs to be notarized, and who can contest a will and under what circumstances. Some states may allow the will to be proven via a self-proving affidavit, while others have no such requirement or even bar its use. You may research your state’s legal requirements at FindLaw, which offers a state-by-state directory of the legal requirements to execute a will. However, be aware that laws change regularly, so it’s always a wise idea to investigate your state laws at the time you are creating a will.

After you have drafted your will, ask an attorney to review it for you. (Many attorneys will do so for a nominal fee.) If you do not have it reviewed, and you have failed to include some important provision, it’s unlikely that anyone will notice the problem until after you have died and your will has gone into effect. At that point, it will be too late to remedy the problem, and the probate court judge will be left with the task of determining your intent. This could lead to a long and expensive probate, conflict among your loved ones, and possible litigation should one or more of your potential heirs decide to contest the will.

An attorney can also help you decide if further estate planning is necessary, such as the establishment of a living trust, special needs planning for people on public benefits, planning for minor children, or advanced estate tax planning. 

Sources 

“State Wills Laws”. FindLaw. https://www.findlaw.com/state/estate-planning-laws/wills.html 

In general, you can change an existing will in one of three ways: 

• Create a will codicil: A codicil is a legal document that changes specific provisions of your will while leaving the rest of the will intact. It is best used for small changes, such as adding or deleting a specific bequest, changing your executor, or updating the name of a beneficiary who has married or divorced. It’s important to note that codicils must be executed in the same manner as a will. In most states, this means it must be signed by two adult witnesses who attest to your identity and your state of mind (e.g., that you are mentally competent and not under duress.)
  

• Create a personal property memorandum: A personal property memorandum is a document that details how you want certain personal items to be distributed upon your death. For example, you may wish to divide your assets equally among your children, but want a particular piece of jewelry to go to your youngest daughter or a family heirloom to go to your oldest son. Rather than list these items separately in your will, you can simply write them down on a personal property memorandum and attach it to your will. You must also mention the memorandum in the body of the will. Nolo recommends a statement to this effect:

“If I leave a writing separate from this will that disposes of some or all of my tangible personal property, whether the writing is executed before or after I execute this will, I direct that the writing be incorporated into this will and followed by my personal representative. If my personal representative cannot find any such writing within thirty days after my death, my personal representative may presume that no such writing exists and shall distribute my tangible personal property in accordance with the provisions of this will.“

Unlike a codicil, a personal property memorandum doesn’t need to be witnessed. You can simply sign it and attach it to your will. Should you change your mind about the distribution of your property at some point in the future, you can simply remove the old memorandum and attach a new one. However, you cannot add a memorandum after the fact. It has to be mentioned in the original will. 

Remember, too, that a personal property memorandum should only be used to bequeath tangible property that does not require a title to convey ownership (for instance, a car, a boat or real estate). Bequests of cash, securities and business interests should be enumerated in your will. 

Note: According to Nolo, a personal property memorandum is currently not valid in the following 20 states:

• Alabama
• Connecticut
• Georgia
• Illinois
• Kentucky
• Louisiana
• Maryland
• Mississippi
• New Hampshire
• New York
• North Carolina
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• Tennessee
• Texas
• Vermont
• West Virginia

If you are making any substantive changes to your will, creating a new will is often the safest and easiest approach. You should also create a new will when you experience a significant life event, such as getting married, having a child or getting divorced. You want your will to reflect your current life situation, not what was true 5 or 10 years ago. 

To ensure that only your new will is honored after your death, state in your new will that you are unequivocally revoking any previous wills and codicils, and list them by date. It’s also a good idea to destroy your old will, preferably in front of witnesses. The courts can’t honor something that no longer exists. 

Sources

“What Is a Codicil?” The Balance. https://www.thebalancemoney.com/what-is-a-codicil-3505182 

“Using a Personal Property Memorandum With Your Will”. NOLO. https://www.nolo.com/legal-encyclopedia/using-personal-property-memorandum-with-your-will.html

“What Is the Best Way to Update My Will?” NOLO. https://www.nolo.com/legal-encyclopedia/what-the-best-update-will.html 

To find a lawyer to draft your will, begin by asking trusted friends or family members for a referral.

If this doesn’t work out, contact your local bar association and ask them to give you the names of a few estate planning attorneys near you. You can find the contact information for the American Bar Association in your state by using this interactive map.

If you don’t have the financial resources to hire an attorney, there are a number of sources that may be able to help. These include the following: 

• Legal Aid: Legal Aid is a service directed by the Legal Services Corporation of America. It provides legal assistance to low-income people of all ages, and is available in all 50 states and the District of Columbia. To find a Legal Aid office near you, consult this interactive map.
  
  

• The American Bar Association: The American Bar Association provides a directory of attorneys who provide pro bono (free) services to low-income clients at FreeLegalHelp.org.
  
  
• LawHelp.org: Developed and maintained by ProBono.net, LawHelp.org provides referrals to local legal aid and public interest law offices as well as basic information about the court system and your legal rights. Consult this interactive map to find a pro bono attorney near you.
  
  
• National Disability Rights Network: If you or your spouse are disabled, the National Disability Rights Network may help you find legal assistance through its Protection and Advocacy System and Client Assistance Program. Visit the NDRN website to find legal assistance in your state. 
  
  
• AARP: If you are an AARP member, you are eligible for a free 45-minute consultation with an attorney through the AARP Legal Services Network. You will also receive a 20% discount on other legal services you may need. To schedule an appointment, call the Legal Hotline at 202-434-2120 or visit Legal Counsel for the Elderly to learn more.