There’s nothing fun about drafting a will. It means confronting your own death and deciding what will happen to your assets. If there’s any joy to be found in the process, it’s in thinking about how your heirs will benefit from any investments, real estate, family heirlooms and other possessions you leave them. To make sure the estate planning process goes smoothly and to avoid any confusion or unpleasant surprises that would create strife among your will’s beneficiaries, here’s what you need to do.
Choose your executor carefully
Your executor is the person who will distribute your assets as you’ve directed in your will. This person will act on your behalf after your death to settle your estate, so you should choose someone you trust to be honest and responsible as well as someone who can manage the burden; being an executor can take a lot of time and be plenty of work.
Once you’ve identified your top choice for executor and backup executor, it’s important to ask those individuals if they are up to the task. Don't just appoint them without letting them know, said Grant Toeppen, an estate and business lawyer at Toeppen & Grevious in Sacramento, California, in an email interview. You don’t want to surprise someone who may not want the responsibility, he added.
While having a backup executor is important in case your first choice isn’t available, you don’t want to appoint co-executors.
Co-executors have to share the decision-making in administering a will, potentially creating friction, Toeppen said. “If you don’t know someone who would be a good executor on his or her own — that is, someone who could act without guidance or a second opinion — consider hiring a professional fiduciary or corporate fiduciary to act as the executor,” he said.
Keep your will and beneficiary designations up to date
By adding beneficiary designations to your accounts, you can direct the financial institutions that hold your assets to distribute your money directly to certain people upon your death, without going through probate. You’re often asked to choose a beneficiary when you open an account; if you haven’t updated your designations in years, they might not reflect your current wishes.1
A will does not control the distribution of accounts where you’ve designated a beneficiary, said David E. Inabinett, attorney and managing member of the law firm Brinkley Walser Stoner in Lexington, North Carolina. Make sure beneficiary designations on life insurance, bank accounts and retirement plans coincide with what your will says. (Related: Understanding insurance)
Toeppen said it’s important to update your will whenever major life events occur such as getting married, divorced or acquiring significant property. “Wills are very rarely a one-and-done legal document,” he said. They have to reflect the current state of your life — and your heirs’ lives — to be relevant and legally sound.
Make it hard to successfully contest your will
Your will could be contested if one of your heirs feels your will was unfair to them and they think they can prove in court that your will doesn’t accurately reflect your wishes. You can take several steps to minimize the odds of this happening.
“Don’t wait until it’s too late to execute your will,” Toeppen said. “Do it when you are fit and healthy. A will made when the testator is borderline incapacitated due to Alzheimer’s or dementia is ripe for an attack from an unhappy heir.”
Inabinett said in an email exchange that it’s important to meet with your attorney privately, without your beneficiaries, to guard against a claim of “undue influence.” If they’re in the meeting, it could be argued that they influenced you to leave them a more beneficial share of your estate than you would have otherwise.
Share your wishes and exclude with care
Money and relationships are two of the hardest things to talk about. Throw in the death of a loved one and you’ve got a powder keg. But it’s important to share your wishes with your heirs before your death. Don’t leave them to be surprised after you’re gone.
Tell your heirs what your general estate plan includes, Inabinett said, and share copies of your will with them if you’re comfortable doing so. If you plan to exclude someone or leave them less than what they might expect, it’s important to acknowledge that person and your decision in your will. Make it clear that your decision was intentional and you’ll guard against the argument that you left them less or excluded them because you forgot them or were incompetent when you made your will.
Account for heirlooms in your will
Most families have items such as jewelry, art, keepsakes or fine china and silverware that have special sentimental and/or monetary value.
But most wills use boilerplate language that says everything should be split up equally, and this lack of clarity is likely to cause arguments, Toeppen said.
By listing in your will each of these items and who should receive them, you can prevent conflict after you’re gone. You’ll also make sure your kids know which china used to belong to their great-grandmother so they don’t hand it over for $10 in an estate sale.
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1 Carolyn T. Geer, “Beware the Beneficiary Form,” Wall Street Journal, July 6, 2011.