The Connecticut Estate Planning Blog

Be Specific with Charitable Bequests in your Will...

If you don't have any family members to leave your estate to, or you do have family members but you don't care to leave them anything (which happens way more often than you'd think!) then it's always nice to consider naming any charitable organizations or churches that have some personal meaning to you. 

Unfortunately, I see many wills which have very simple language when it comes to charitable bequests.  For example, and I'm not promoting donations to this particular organization, but let's look at the statement, "I leave my estate to the American Cancer Society."  Brevity is wonderful, but in this case it can cause some problems.

First of all, the American Cancer Society (like most large charities) has a central headquarters and many regional offices.  Did the person want the money to benefit the headquarters or her local regional office since it's closer to home?   

Second, what did the person want the money to be used for once it arrives at ACS?  In all likelihood, a simple statement like the one above will result in the charity using the money for its general purposes.  This could include administrative things like purchasing paper clips.  And if that's what the person wanted then that's fine, but maybe she wanted her money to be used for a higher purpose like research funding, establishing a scholarship or to support a particular fund-raising event, like ACS's Relay for Life.

The message is that some things should not be kept simple, like a charitable bequest in a will.  Be specific and detailed to ensure that your true wishes are followed.

The Evolving Will

Many of my clients tend to procrastinate when it comes to finalizing their estate planning documents.  They struggle over who to appoint as guardians for the kids, or who should be the "back up" executor if the surviving spouse can't act, or who's going to end up with the tool collection.  Sometimes these questions can be tough ones and people "freeze up" and stress out over whether or not they're making the right decision.

As the estate planner I'm always concerned that the famous bus is going to run my clients over while the drafts of the wills sit on my desk unsigned.  So I try to gently nudge my clients along towards finalizing everything. 

One factor that I try to impress upon my clients is the fact that their wills are not set in stone; that my clients should conceptualize their wills as evolving documents.  As developments occur in the family (if people pass away, someone becomes disabled, someone gets divorced, there's a "falling out", etc.) it is possible to tweak the documents in order to address the new family situation.

I also emphasize that tweaking the documents ("amending" the documents, in legalese) is very easy and very inexpensive, assuming that the change is not overly-complicated.  I always keep the documents on my computer, or stored digitally, so re-printing the documents with a new date and a new name here or there is very easy.  My fee for doing something like that runs in the two figures, not three figures.

So, don't stress out about it too much when you set up your will and other documents.  Make the best decision you can given the current circumstances and facts.  Then schedule a signing date with your attorney knowing that you can easily change things later if you need to. 

And remember that once your documents are signed you will experience a wonderful peace-of-mind, and that's what estate planning is all about.

A Tip on Funeral Instructions...

Many clients ask me whether they should include their funeral instructions in their wills.  I always tell them that's a good start, but they need to go beyond that as well. 

The problem with stating your wishes in your will is that in most cases, no one looks at the will until sometime after the funeral.  At that point, learning your wishes regarding your funeral isn't very helpful. 

So by all means, document your funeral instructions in your will, but make sure to follow that up with verbal instructions to close family members and friends which will prompt them to refer to your will before the funeral arrangements are made. 

Better yet, consider purchasing a pre-paid funeral contract with the funeral home of your choice.  That's a great way to guarantee that your wishes are well known...not only are they in writing, but they're also backed up with some funds!  This is also a great tool if you need to spend down your assets for Medicaid planning purposes.

What Does "Per Stirpes" Mean, Anyway?!

"Per Stirpes"?  What the heck does that mean?  That may be the singlemost common question I hear from clients when they receive drafts of their estate planning documents for their review.  It's certainly a fair question since it doesn't tend to come up in everyday conversation.  But it's one of those necessary evils in the world of estate planning since writing out the meaning of the term would add another large paragraph to everyone's will.

First of all, it's a Latin phrase (a working knowledge of Latin is practically mandatory in the legal industry for some reason) which means "by the roots".  Interesting perhaps, but not very helpful yet.

OK, it essentially means that descendants of the next generation following a beneficiary will each receive an equal share of the beneficiary's share of the estate if the beneficiary has predeceased the decedent.  Well, if you read that last sentence very slowly it may start making sense.

So let's finish it off with an example:  Jerry dies without a spouse, but he has one son, Kramer.  Actually he had one son, but Kramer tragically died before Jerry.  BUT, Kramer had two kids, George and Elaine, and they survived both Kramer and Jerry. 

Can you guess what happens next?  Yes, Jerry dies with a will stating that his estate goes to Kramer "on a per stirpes basis". 

The result: since Kramer's not around to get his inheritance, George and Elaine will take it on Kramer's behalf, 50/50.  It doesn't matter if George and Elaine have kids of their own because those kids (Jerry's grandkids) would get nothing since their parents survived them.

That's the simplest way I can explain "per stirpes" (complete with a Latin translation!).  But if it's still as clear as mud, please ask your estate planning attorney to walk you through how your estate distribution works if the beneficiaries of your will receive their shares on a per stirpes basis.

Your Will and Your "Stuff"

When I talk with clients about their wills, they almost always want to know how their estate planning should address their "stuff". The more refined, legal terminology for "stuff" is "tangible personal property". Things like collections, photo albums, clothing, furniture, the family coat-of-arms...they all fall into the "stuff" category. It's essentially any asset that isn't a financial item or real property. Just about everything else is your "stuff".

And don't take your stuff lightly! Any probate attorney will tell you that "stuff" often touches off very nasty legal proceedings. If you ask Judge Killian at the Hartford Probate Court about the case involving the family coat-of-arms that I mentioned in the above paragraph then you should be prepared to see his eyes roll around a great deal. So your stuff should be taken seriously in your estate planning.
If your stuff is genuinely valuable stuff which has significant financial value or will likely appreciate in value over time (like a fine painting or a baseball card collection) then it is something that will be considered part of your estate and the Probate Court will want to monitor its administration and distribution.

However, if an item has sentimental value but really no financial value (like a photo album or a family heirloom) then the Court typically prefers that the family handle its distribution outside of the probate process. This means that you are better off not mentioning it in the will and should direct its distribution with a letter or memo; something non-legal that is separate and apart from the will (attaching sticky notes with names on them to hidden spots on personal items is not unprecedented). This approach also makes it logistically easier to document any change-of-heart you may have in the future. In contrast, if you specifically mention it in the will then you need a very formal amendment process (an attorney to draft a codicil, witnesses, a notary, etc.) to make any changes.

But ( and this is an important "but") if you anticipate a family feud over any particular item, whether it's valuable or not, then specifically mention it in your will. There might still be a family feud over it, but the chances of your wishes actually being carried out go up substantially when they are in your will, which is witnessed and notarized.

One last tip: it's a somewhat morbid discussion, but you may want to consider having a family meeting to get some input from loved ones on how your stuff should be distributed. This may be the best way to avoid post-mortem court battles over your stuff.

Should Funeral Instructions Be In My Will?

Planning out a funeral certainly seems like a morbid task.  But the fact of the matter is that the act of planning out your funeral, whether it's done by you or someone else, is something that has to be done eventually (in light of the fact that death is one of the two things in life that are guaranteed).  So the funeral planning is one of the things that many of my forward-thinking cilents do.  And the question of whether the funeral instructions should be contained in the will often comes up.

As is usually the case with legal questions, the answer to this one is "yes, but...".  I usually encourage my clients to go ahead and talk about their funeral plans in their wills, assuming they have strong feelings on that topic, but you need to go beyond that. 

The problem is that when someone dies the will is often not even opened until sometime after the funeral.  You can imagine the loved ones' awkwardness when they discover that the funeral instructions in the will do not match up with what actually happened at the funeral. 

So, go ahead and include your funeral plans in your will, but you need to verbally indicate your wishes to your family as well.  You can even give them a document, separate and apart from the will, which spells out all of the funeral plans for them.  Setting up your funeral plans with the funeral home of your choice ahead of time also makes sense.  In other words, you should not rely on your will as being the sole source of funeral plan information for your family.

I will also mention that making funeral plans ahead of time, as morbid as that process may be, is almost always deeply appreciated by loved ones.  Having funeral plans in place removes a challenging administrative burden from your family as they go through an emotionally difficult time.

What if Someone In My Will Moves?

In most wills you will find that whenever a person is named in the document the name is usually followed by his/her town and state.  The purpose of this is to ensure that the Court and anyone else who reads the will does not confuse the named person with someone else. 

I like to take the "belts and suspenders" approach by listing each person's relationship to the client as well.  For instance, "I leave one share of my estate to my brother, Billy Bob, of Glastonbury, Connecticut".  Theoretically, there's no need to list Billy Bob's town and state since an indication that he is the client's brother dramatically narrows the field of possible people.  But I suppose I get a bit neurotic when I draft wills!

Anyway, this usually prompts the question of whether the client needs to amend his will if one of the people named in his will moves.  What if Billy Bob moves next door to Wethersfield after the will is signed?!

If someone in your will moves then there is absolutely no need to update your will.  And if your attorney tells you otherwise then he should probably be replaced. Just think about it... in today's mobile society each of your beneficiaries could change addresses several times before you die!  The will simply says that on the day that you signed the will, Billy Bob lived in Glastonbury and you can leave it at that.

The only possible reason why such a move would prompt a legitimate will amendment is if the move created an identification problem.  For instance, in the above example, suppose the client disinherited his other brother, also named Billy Bob (I don't think I've ever seen two brothers with the same name), out of his will, but then that brother moves to Glastonbury after the other Billy Bob moved from Glastonbury to Wethersfield.  Now the will seems to identify someone who the client didn't intend to include as a beneficiary of his will.

Please note that the above facts only tend to arise in law school exams, not real life.  Suffice it to say that address changes do not require will changes unless there are extraordinary circumstances.

Don't Mark Up Your Original Will!

I have too many clients who believe that if they want to change something in their will after they sign it then it would be fine to simply scribble their changes onto the original document.  It seems like an unmistakable way to communicate their intentions to their loved ones...and it saves them the cost of having to do a codicil.

Suffice it to say that this is a very bad idea that can leave a great deal of chaos for your probate estate and surviving family members.  By physically marking up the original document you run the risk of the local Probate Court deciding that the mark up's were an indication of your intention to revoke your will...not just amend it. 

Such a determination means that the directions contained in your will would be ignored and your estate would be distributed by the state's "laws of intestacy", which essentially means that the Connecticut legislature would decide how your estate is distributed. 

At the risk of sounding self-serving, I implore you to contact an estate planning attorney and formally execute a "codicil" (fancy word for "amendment" of "change") to your will to ensure that your wishes are followed.  Thanks to computer technology, wills can be changed very easily and for a very low cost.

The Ideal Way to Change Your Will...

One of the more popular questions posed by my estate planning clients is "What is a 'codicil'?"  It's certainly not a word you encounter on a a regualr basis.  It is essentially a fancy way of saying "a change to your last will and testament".  As I've mentioned before, a will should not be conceptualized as a permanently static document.  It is a document that, ideally, evolves over time as your family's situation changes over time.

The traditional method of updating your will is by having your attorney draft a codicil which usually indicates something like "I hereby delete Article II and substitute the follwing language..."  In other words, it only addresses a certain provision, or provisions, and spells out the new language you want to add.

My own policy is that I do not prepare codicils.  I simply re-print the original will with the new provisions and have the client execute the new will.

Why?  There are basically two reasons.  First, it makes it easier for the client in regards to document management.  If you sign a separate codicil then you will need to keep the codicil and the original will for your records.  You must have both when you pass away.  In contrast, if you just have the new will with the new provisions then that's the only document that you need to maintain.

Second, the legal fee should be lower because the attorney does not need to create a brand new document from scratch.  My practice is very technology-oriented and all of my clients documents are saved in my computer archives (as is the case with most estate planning attorneys).  This allows me to pull up a client's old will on my computer, re-type the provision the client wants to amend, change the date to the current date, print it out and voila!  The new will with the updated information is ready to be executed.  Needless to say, this does not take much time (most of the time this is a same-day service) and therefore the legal fee is minimal.

If you need to change your will I recommend that you suggest this approach to your attorney and make the process as simple as possible for you and the attorney.

"Where Do I Keep My Will?"

This is one of those standard questions that nearly every client asks me after their will or living trust is finally executed, and it is a vitally important question.  I have more than enough stories about the angst and chaos that has ensued when families cannot locate the original will after a loved one passes.

Let me start out by saying that I'm not a fan of keeping your will in a safe deposit box at a bank even though most clients assume that such a box is the top candidate.  Unless you have someone else's name on the list as a signatory, it is very difficult (albeit not impossible) for someone else to gain access to the box.  Also, even if the family knows that you have a safe deposit box, it is often difficult for the family to determine which bank and at which branch the box is located.  Those tiny, little keys don't really tell you anything...other than the fact that it opens a safe deposit box somewhere.

What I usually tell clients is that they should keep their wills wherever they keep their other important documents.  That location is different for every client, but if the family knows that all of the important stuff is in your file cabinet, or a strong box, or your bottom dresser drawer, or the freezer (I did have one client who argued that that was the most fireproof place in his house!) then it shouldn't be a problem for your loved ones to find your will upon your passing. 

Ideally, having your will in a strong box at home (with your other important documents) is the best arrangement since such boxes are usually fireproof.  But don't panic if you don't have one since the chances of a fire that completely destroys your house and everything in it are quite slim.

However, if you have one of those families in which good chemistry is somewhat lacking and there are some family members who may be motivated to destroy your will, then you may have to be a little more secretive.  In fact, the safe deposit box at the bank with a trusted person as a co-owner would probably be the best way to go in that situation.