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The Montana Estate Lawyer

Friday, June 29, 2018

What a Will Does Not Do

A simple Will is a bares bones simple estate planning tool that contains not much more than your wishes concerning transfers of property at your death.  A simple Will cannot and is not meant to do everything for you.

The following are some estate planning goals or priorities that go beyond the limitations of a simple Will:

  • Avoiding probate: With exceptions where the deceased owns no real estate solely in his or her name at death and solely owns only personal property with a cumulative value of less than $50,000, Wills must go through the probate process. Most of the time, a well-written and thought out Will, shared with family before death, should be able to pass through probate relatively quickly, but complications may occur in some circumstances. So, if your goal is to pass on property to loved ones and avoid probate, a revocable living trust is often a good option.
  • Transferring certain types of property: A Will allows you to transfer those assets that you solely own or own as a tenant in common at death.  A Will cannot be used to transfer property held jointly with another person, property already owned by a living trust, life insurance proceeds that have a named beneficiary, property in pay on death or transfer on death accounts (POD or TOD), or money left in a pension or retirement plan in which there is named beneficiary.
  • Reducing estate taxes: If you are hovering around the estate tax exemption limit and are hoping to reduce or eliminate your tax obligations, a simple Will cannot help you. Instead, you will want to use a more complex Will than a simple Will, or use tax-avoidant trusts, or make gifts to charities or loved ones while you are still alive.
  • Leaving funeral instructions: You may include your funeral instructions in the body of your Will. However, there is a real risk that the family will be far too busy with making your funeral arrangements and coping with the emotional aspect of a death to take a close look at your Will. Use other estate planning tools to express your wishes or, at the very least, make sure a loved one knows what your instructions are and where to find them.

Jon


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