FindLaw KnowledgeBasePublished: 2011-08-25
No one really likes to contemplate his or her own mortality, but traditional wisdom teaches that a little planning during life makes things a lot easier on surviving loved ones after death — which is why it is prudent to make a will. However, many believe that once they have accomplished that task they need never think about it again. The truth is that a person needs to revisit his or her estate plan periodically to ensure that it remains current and accurately expresses his or her wishes, especially after major life events such as marriage, divorce, births, deaths, moves, changes in wealth or possessions, or changes in the law.
Reasons to Have a Will
Creating a will is crucial for each person. Some people believe that if they do not have substantial assets they have no need for a will. However, there are numerous reasons why people should draft wills. Primarily, drafting estate planning documents such as wills and trusts is an act of love for surviving family members. By planning during life, a person saves surviving loved ones the hassle of trying to figure out the deceased’s affairs while they are mourning. A will also can help prevent family members from fighting with one another over who gets which possessions because the will distributes the assets.
A will is the most effective tool for providing for those loved ones a person leaves behind. Without a will, a person cannot ensure that the people whom he or she wants to receive his or her possessions or money will actually get them. A person should not assume that an intended beneficiary will automatically inherit his or her possessions. If a person dies intestate, state probate laws may dictate that they go to other people. For example, if a person lives in a domestic partnership in Virginia and the couple has no children, upon the death of one of the couple, decedent’s parents could inherit his or her assets if the decedent failed to make a will.
Additionally, a will allows a person to appoint a guardian for any children who may be under 18-years-old when the parents have died.
Reasons to Update a Will
Drafting a will is just the first step. A person needs to make sure his or her will is current by reviewing it after major life changes or after the passage of time. One of the biggest reasons to update a will is change in marital status. If a person is about to get married, he or she will want his or her will to accurately reflect how much of his or her assets will go to the spouse. Additionally, if a person is divorcing, he or she will want to change his or her will so that the former spouse no longer is a beneficiary of the will.
Another major event that should trigger a review of a will is the birth of a child. At the very least, parents should name guardians for each new child in the event that both parents pass before the child is 18-years-old. Additionally, as children grow older a parent may want to make special bequests to certain children based on that child’s needs. Updating a will periodically allows parents to take their children’s special circumstances into account in their estate planning.
Just as the birth of a child is a major life event, so is the death of a loved one. If that loved one happens to be named as a beneficiary in a person’s will, the will should be updated so that the bequest goes to someone the testator wants to have it. Otherwise, the heirs of the person who predeceased the testator will receive the bequest, which could be contrary to the wishes of the one making the bequest. Similarly, sometimes people change over time and a testator could decide he or she no longer wishes to leave money to a certain person or have a certain person act as guardians for his or her children. Regular reviews of a person’s will can ensure that the disposition of a person’s assets still reflect his or her wishes.
Another reason to update a will is if a person experiences significant changes in the amount of assets that he or she has to dispose of in his or her estate. If a person’s assets increase, he or she should change the will to minimize the financial penalties for those who inherit. For those who have over $1 million dollars in their estate, estate taxes become a concern. Conversely, if a person loses a great deal of money, he or she may want to update the will and alter or eliminate certain bequests because the estate does not have the money to fulfill them anymore.
Moving to another state is a reason for a person to review a will, as well. Estate laws vary by state and just because a person has a valid will in one state does not mean that another state will honor the testator’s intentions in the same manner. Moreover the new state may have laws that should be incorporated into the will.
It is important to review a will periodically even if a person does not move out of state, as laws governing inheritance change periodically at both the state and federal levels. For example, the federal government eliminated estate taxes for 2010 but reinstated them for 2011. It is important to keep abreast with changes in the law and to determine how they can impact an estate plan.
Discussing end of life issues can be challenging. It is uncomfortable for many to think about a time when they no longer will be alive. However, a person can offset that discomfort with the peace of mind he or she gains from knowing that he or she has settled his or her affairs so that it will not be a burden for loved ones after he or she passes. If you have not yet made an estate plan, or significant time has passed since you reviewed your estate plan, do not hesitate to contact an experienced estate planning attorney who can discuss your situation with you and advise you of your options. It is good if the estate planning attorney who is an elder law attorney because of their added knowledge and experience.