A last will and testament is a fundamental document in any estate plan. Every adult should have a will in order to determine property distribution after death. However, a will is limited in what it can do. Too often, a will cannot accomplish what you need or even expect it to do.
First, it is important to understand why property passes through a will.
During your lifetime, you have the right to transfer property simply because it is yours. If you have a power of attorney document, it gives an agent the authority to transfer your property, but only during your lifetime.
In Kentucky, your agent’s power expires immediately upon your death. This means the person you choose as your power of attorney agent can do nothing further on your behalf.
After you die, there is nobody with legal authority to transfer your individually owned property. Because no person can transfer your property, the court must determine who may receive the property according to your wishes as set forth in your will.
If you have no will, the court will distribute property according to the law.
Second, you must understand the type of property which passes through a will.
Individually owned property that does not have a designated beneficiary must be transferred through the probate process. This includes real estate, such as land or a house, which is owned with another person but with no right of survivorship provision within the deed. Real estate deeds determine the type of ownership each individual possesses.
Usually, couples who purchase property after they are married own the property with the right of survivorship, meaning the surviving owner automatically will continue to own the property without it going through the court’s probate process.
However, deeds which do not include this provision generally mean each owner owns only a fraction of the property. Upon the death of one owner, the remaining owner’s fraction must be passed through probate to the beneficiaries of the deceased owner.
Similarly, property which has a designated beneficiary will not pass through probate but will pay directly to the beneficiary. This category usually includes life insurance, retirement accounts, investment accounts and, in many cases, bank accounts.
Because a will serves only to handle property distribution upon death, and only for property which is not otherwise distributed, a will cannot protect assets during your lifetime.
Beneficiaries within the will only receive whatever property is left upon your death, after all reasonable expenses and debts are paid.
Similarly, a will cannot direct the distribution of beneficiary accounts after your death. Including provisions within your will for life insurance, retirement accounts or other accounts with designated beneficiaries will be ineffective.
For example, life insurance proceeds have designated beneficiaries. Including provisions within your will to spread out the payments over time to a beneficiary will be inoperable because the designated beneficiary will receive the property outright. Insurance proceeds never pass through probate for your instructions to be honored.
The alternative, naming no beneficiary and allowing your estate to receive the life insurance, thereby forcing it to pass through probate, is an equally poor option.
A better way to ensure beneficiaries will receive property over a period of time is by creating a revocable trust during your lifetime which can be the beneficiary of payable-on-death accounts. Because a revocable trust is not a person, it cannot die, and will continue to exist after the death of the individual who set it up.
A revocable trust avoids property going through the probate process, can be the beneficiary of payable-on-death accounts and holds the instructions for long-term distribution of property.
A will is not a plan. Before creating your will, be clear about your ultimate goals for your property and loved ones. Determine which property will pass through your will to see if the instructions you set out are enough.
Finally, make sure your documents, including beneficiary accounts and legal documents, reflect your plan.
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