“Where there’s a will, there’s a way” is not about executing your own will and testament, but the phrase takes on a new meaning when you apply it to estate planning. Basically, if you don’t have a will, the government will “take care of things” according to the state law. If you do have a will, you have a way to control who gets what. It comes down to how much you are concerned about who in your life receives your property and assets after you are gone.
Or, as Carole Cukell Neff, a board certified estate planning and administration specialist with Sessions, Fishman & Nathan said, “Write a will if you don’t want Louisiana law writing it for you.”
A 2022 survey by Caring.com indicates that only 33 percent of Americans have a will or living trust — and 67 percent don’t. So, while it seems logical and for many people, and downright necessary to ensure that your loved ones avoid a lot of unnecessary complications, there are plenty of reasons people don’t take the time to do a will. Why?
One, because it means facing your own mortality; two, because there are misperceptions that it’s a complicated process; and three, because people assume it takes a lot of time and money.
While estate planning is indeed directly related to the end of your life, there are some concrete ways to not get buried alive in the process. A last will and testament seems stark because it requires you to consider “What Happens After You Are Gone.” One survival tactic is to distance yourself a little from the details. Katherine Conklin, attorney at law with McGlinchey Stafford, LLC, and also a board-certified tax law and estate planning and administration specialist, keeps it clinical with her clients.
“If they start worrying about who gets the piano and the ring, they never finish the will. They get caught up in their own mortality. It stops them cold,” she said. However, when it’s a formula that they can grasp and they don’t think about individual items, they can sign off on it and know that the most important things are taken care of. And, as she points out, ultimately the executor of the will can handle the details that you may not want to consider while enjoying the here and now.
“Most of the next generation doesn’t want most of our stuff anyway,” she said. Sometimes, the family prefers going through an estate sale company for this reason, as well as to avoid some of the emotional complications of going through all the memories left behind. An estate sale company organizes the items left by loved ones, conducts the sale, and then distributes the money to the family. If this sounds cut and dried, it is. As John Lennon sang in the “Ballad of John and Yoko,” “when you’re dead, you don’t take nothing with you but your soul.” Try not to worry about what will happen to your stuff. If that’s impossible, talk to someone you trust in the family to become executor of the will so they can worry about that for you. You will probably inherently know who is best suited to this task. Go with your gut. Keeping the will as simple and clear as possible will be better for you now, and better for everyone else later.
Approach the creation of your will the way you would approach any other type of financial health maintenance, as one more way to simplify your life and lessen stress. A competent estate planner will give you a list of what they need to know before you arrive, and after an hour to 90 minutes of discussion and review, she or he should be able to draft something for you to send to you for review. In fact, according to Neff, the longest amount of time in the entire process is usually the time it takes for someone to review it and sign it. “I consider it part of my job to nudge people,” she said.
The good thing is, once it’s done, you can set it aside for a few years. Unless there is a major change like divorce or change of jobs, you can look it over every three or four years to make sure it still aligns with your wishes and is reflective of current laws. Some lawyers can even do the bulk of your will via email, as a starting point. Get on the phone with a few local estate planning lawyers and choose one that suits your style. None will rush you; all will try to make it as efficient as possible if they are professionals.
Given all of the above, you can rest assured that creating a will is neither as complicated, time-consuming, or as expensive as you thought. Try to think positively about it: A will ensures a kind of immortality by allowing your wishes to live on.
And yet, “not everyone needs a will”, according to Conklin. “You only need a will if the laws of intestacy are not what you want them to be.” So, what does that mean?
It means that, for example, if you have a stepdaughter who you love dearly and you want her to be the one to receive your worldly assets, then you want a will. Because without it, your property will automatically go to your children and spouse. Or, if you want to be sure that your adult children do not have to give permission to someone new in your life (a second or third wife) to enable her to sell your home after you die, you will want a will.
There is no shortage of worst-case scenarios that can be provided by lawyers who work with families left behind without a will from the deceased. From the widow whose adult children automatically receive property rights and therefore must give consent for her to sell it, to the young widow who remarries and loses the ability to live in her first husband’s house, to the children who loses both parents and upon turning 18, are automatically given ownership of all assets, there are just far too many stories of complicated court proceedings and years of unraveling, jumping through hoops and waiting. Simply stated by someone who has seen all the above, “Things can get very screwed up if someone dies with no will,” Neff said.
To put it more legally, according to Mylouisianasuccession.com: “If a person dies without a valid Last Will and Testament in Louisiana, he or she is said to have died intestate. His or her estate will be handled by intestate succession. This means that the deceased person’s assets will be distributed under Louisiana intestate law.”
Note: The application of Louisiana intestate law is very mechanical. It doesn’t leave room for shifting assets are altering distributions based on circumstances. Because of this inflexibility, you should not rely on Louisiana intestate law to take the place of a “Last Will and Testament.”
“Louisiana’s intestate rules distribute a deceased person’s assets to various relatives, beginning with the children and spouse and extending to other descendants, ancestors, and descendants of ancestors. The exact application of Louisiana intestate law depends on two factors:
- Whether the decedent’s property is community property or separate property,
- The degree of relationship of each family member to the decedent.”
Conklin says she is shocked how few Louisianans really truly understand community property laws. Not only is it wise to visit with an estate planning lawyer about this, but there are some resources online you can read before sitting down to determine your best plan of action, including the aforementioned Mylouisianasuccession.com, which also explains two terms you will and should become familiar with if you own property and want to determine who lives there after you cannot: “usufructs” and “naked ownership.”
“A usufruct is a right by one person over the property of another. It can be assigned for a specific period of time. The person who owns the property is known as a naked owner. Usufructs often arise under Louisiana intestate law dealing with community property. A person can create a voluntary usufruct by lifetime gift or in his or her Last Will and Testament. This is a useful estate planning technique, especially in previous marriage situations. It is common for a spouse’s will to give the surviving spouse a usufruct over all community property. This provides for the spouse during her lifetime while ensuring that the decedent’s children (who may not be the spouse’s children) ultimately receive the property.” –mylouisianasuccession.com
Q: What is the best age to begin making my will? While it may not be necessary for you to create a will yet, it is never too early to create a list of all your assets, insurances, valuable and sentimental items so that when you are ready to meet with a lawyer to formalize a will, you have a starting point. The more complicated your life gets and the more people whose lives are intertwined with yours, the more should begin to consider your will. Consult with a lawyer to begin to work out all aspects of “what ifs” and they will guide you on all your options, state laws, and possibilities. When you do create a will, revisit your plan every 2-4 years based on your own personal changes, state laws, and other things that may affect your approach to the distribution of your assets, big, medium, or small.
Q. Can I make my own will online or by hand? Neither of these methods are recommended. Talk to any estate planner and they have too many examples of people who have done them incorrectly or they are simply not valid in the eyes of the law. Notably, Louisiana has such unique laws that some online will websites will specifically state “not valid in Louisiana.” True dat. “There are so many ramifications to these documents that can have an impact for generations… they should be treated with respect, and they are not something you should do yourself,” advises Neff.
After you have completed your will and you feel like you can set that aside for a while, make a few copies and give it to several people you trust. It’s surprising how few people communicate their wishes or their will’s contents to third parties and leave friends and family scrambling when they depart. You should also have one or two people you trust with your online passwords and access to other documents that will be needed after you are no longer here to pull them off the shelf or the computer.
Take-Aways
- You should consult a lawyer when you feel ready to set up a will or a trust.
- There are a lot of things in this life you may not have control over, but this is one area where you can exercise a significant amount of it. Take advantage of making these big decisions while you have a clear mind and good health.
- Take your time and talk with your family and friends about your plans and wishes, desires, and fears. If there is one thing we all have in common, it is our mortality. Rather than deny it, embrace the fact that you will not be here forever, and allow that to inspire you to make the most of life for yourself now, and the best possible life for those you love after you are gone.
- Planning for your future goes beyond your own life, and that’s not always a happy thought. On the other hand, think of the fact that your relatives will be a lot less happy if they have a lot of legal battles to fight after you’re gone.
- You don’t think of planning for the after life…but your will and estate planning is the closest thing to it. You are planning for after your life. While this is not as fun as planning a vacation or a party now, think of it as a small payment for the large gift of living.
Additional Resources:
aarp.org/money/investing/info-2023/top-facts-about-writing-a-will
