Risks & Benefits of Sweetheart Wills
Nothing says “I love you” quite like a last will and testament (will). And, if you get right down to it, nothing says it better than “sweetheart wills” between married spouses. Let’s take a look at this traditional estate planning tool, its uses and at least one pitfall to avoid.
Provide for Your Spouse
Most married couples want to honor their wedding vows to care for one another whether richer or poorer, until death they do part. Consequently, sweetheart wills are so named because they reflect this desire by designating the surviving spouse as the direct inheritor of everything owned separately or jointly. Commonly, both spouses have “mirror-image” provisions in their wills to ensure that virtually everything passes to the surviving spouse.
Make Specific Distributions
On the other hand, spouses may wish to make provision for distributions that are not outright to the surviving spouse, but are intended to pass instead to other loved ones or charities. For example, your spouse may have little interest in the ceramic bullfrog collection your beloved Aunt Vivian left to you in her estate. Fortunately, you may specifically designate that cherished collection to your cousin Vinnie, who was also a favorite of Aunt Vivian.
Appoint Guardians for Minor Children
In Texas, a will is the primary legal tool used to appoint guardians (back-up parents) for orphaned minor children. When selecting a guardian, always select a successor or two. Because the primary guardian you appoint may be unwilling or unable at the time of need. Also, select candidates who share your basic beliefs and values, not to mention who adore your minor children. Finally, speak with them and make sure they are willing to take on the job of parenting your children before they are named in your will.
Disinherit Your Own Children
One of the biggest risks and unintended consequences of sweetheart wills is found in the context of blended families. If you have remarried after being widowed or divorced and have children from that prior marriage, then watch out! Without careful planning, you will disinherit your own children if you leave everything to your new spouse. You’ll need to make intentional provisions to leave assets to your children. An experienced Estate Planning Attorney will ensure this is done properly by naming them as beneficiaries on certain accounts.
Send Your Estate to Probate
Many people mistakenly believe that a valid will avoids probate, or they confuse it with a living will. Nothing could be further from the truth. A will cannot appoint anyone to handle your financial matters or make your medical decisions if you are legally incapacitated because a will only has legal authority upon your death and the subsequent delivery of your original will to the probate court within the timeframe required by statute.
Depending on your state of residence at the time of your death, some commonly cited drawbacks to probate are the time and expense involved (after all, it requires the involvement of an attorney and a probate judge), and the public nature of the process (anyone can get a copy of your will and the inventory of your assets). Texas has a special provision called “Independent Administration” which makes probate much quicker and less expensive. Your will must be drafted this this special language to take advantage of this provision.
If these potential drawbacks are something you would prefer to avoid, then you may wish to consider an alternative to probate, like a living trust.
Summary
Before you make any legal moves regarding your estate, make sure you contact an experienced estate planning attorney to fully educate you on your options.
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