The Why and When of Estate Planning

Two general questions we often receive are “Why do I need a will?” and “When is the right time for me to create my will?”

The answers to these questions depend upon each individual’s respective station in life and their immortality. With that stated, here are some general principles to follow for the why and when to create your will.

Why do you need a will?

A will is a legal device that tells the world who gets your assets upon your passing. An individual who dies without a will dies intestate, in which event the law of the state of decedent’s domicile at the time of death determines the distribution of decedent’s estate. As a result, the inherent uncertainty and lack of control over intestate distribution makes it preferable to have a will.

Further, a will can indicate your desires with respect to:

  • Guardianship of minor children. A guardianship provision in your will allows you to specifically transfer guardianship of your children to those individuals whom you trust most with your minor children.
  • Cremation and burial wishes. Your will can include your directives regarding cremation, burial, donation of organs, etc. Inclusion of such information in your will greatly assists those trying to effectuate your wishes.
  • Testamentary trusts. A testamentary trust lets you put conditions on how trust assets are to be distributed to the beneficiaries. Further, it names a trustee to oversee the trust and ensure compliance with the terms of the trust.
  • Disinherited parties. Through intestate succession, it is possible that a beneficiary whom you otherwise intended to disinherit will inherit property. A will can prevent inheritance by an individual you wish to disinherit.
  • Specific bequests. A specific bequest occurs when your will gifts a specific piece of identifiable property to an individual. Many times individuals have specific items of property which they wish to pass to a specific individual, which can be done through your will.

When is the right time for you to create your will?

You should execute your will as soon as you have a desire to control the distribution of your estate. Additionally, life often presents various events which will motivate you to create your will, or change your existing will.

Wills are easily amended or even cancelled in their entirety. Thus, it is not necessary to delay execution of your will until such time as you are able to plan every possible bequest. Accordingly, when your situation in life changes, you can revisit your will and determine whether it still reflects your desires. Following are some events that may cause you to consider making a will, changing your existing will, and/or changing beneficiary designations you have made for insurance policies, bank accounts, and retirement accounts:

  • You get married or divorced. You and your new spouse should create new wills upon getting married. In most states, including Iowa, your spouse is legally entitled to claim a certain percentage of your estate upon your passing, unless you have a written agreement to the contrary. Further, if you are recently divorced, it is advisable that you understand how your state law will treat bequests made by your will to your former spouse. You must consider these factors when deciding whether to execute a will or update your estate planning.
  • You have a new addition to the family. With the arrival of a first child you will want to execute a will or update your existing will to include a guardianship provision for the care of your children. With the arrival of a second (or more) child, you will want to review your will to ensure that it properly reflects your current guardianship wishes.
  • You have new stepchildren. Unless you legally adopt your stepchildren, they are likely to have no right to inherit from you through intestacy or through an existing will. Accordingly, if you wish to leave any portion of your estate to new stepchildren, you should consider creating or updating your will.
  • You acquire or dispose of assets which were specific bequests or which you wish to make the subject of specific bequests. If you have acquired property that you wish to make subject to a specific bequest, you must execute a will or update your will accordingly. If you have disposed of property that was formerly subject to a specific bequest, you should review your will to determine whether you intend for your disposal of that asset to effectively disinherit the devisee by cancelling the specific bequest.
  • You have recently moved. It is important to understand how the laws of the state of your domicile affect your existing estate planning, and whether the laws of your new state of residence affects the articles of your will. Further, with a substantial life change such as a move, it is possible that you have acquired new assets which you will wish to devise through a will.

If you, or someone you know, are in need of legal services regarding estate planning please feel free to contact the Kreamer Law Firm, P.C. through our website or by calling 515-727-0900.

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