Your Last Will and Testament
When most folks think of estate planning they think of making a Will. A Will or a Last Will and Testament is a commonly used instrument in estate planning, and is often regarded as the “core” document of any estate plan. Briefly stated a Will is a legal declaration of a person’s wishes as to the final disposition of his/her property. Wills are completely revocable during a person’s lifetime (barring incapacity), and only become irrevocable and operative upon the death of the maker of the Will. A Last Will and Testament is more than just a set of instructions that control the final disposition of your assets. Wills can help you to protect your assets, provide instructions for the care of minor children, name Guardians for minor children, and name a person (an Executor) who will carry out your wishes.
Wills can perform simple tasks like the outright distribution of your assets to your designated beneficiaries, or more complex functions, such as creating Testamentary Trusts at your death or moving your assets (or pouring them over) into a previously established Trust (commonly referred to as a Pour Over Will). Wills facilitate the distribution of your assets to family members, friends, charities and others. Wills can provide detailed instructions for the Executor on how to manage the decedent’s property, as well as other powers. As the maker of a Will you can decide how much detail and post mortem control is dictated in your Will. You are in charge. You can give your antique lamp to your Uncle Lou, make unequal distributions to your nieces and nephews, or make a large cash gift to the local animal shelter. It is really up to you.
It is not recommended that you use a do-it–yourself Will kit or an internet Will. Great caution should be used with these instruments. These instruments often fall short of planning for your individual situation. A qualified estate planning attorney is far better suited to develop a plan that accomplishes your specific estate planning goals, while taking into consideration the relevant federal and state laws, and tax regulations.
People often think they can save money through the use of an internet or fill-in-the-blanks type Will. If you are concerned with the cost of estate planning, you can save time and money if you meet with your estate planner fully prepared. Come to the meeting organized, with a good sense of what you would like to see happen after your passing. Have a clear picture of your assets, and good ideas on how those assets are to be disposed of, as well as other concerns like the appointment of Guardians, Executors and Trustees. If you have existing Wills or other estate planning documents, including divorce decrees and prenuptial agreements, you should also bring those to your first meeting with your estate planning attorney.
There are some folks who believe they can just write out their own Will by hand. Connecticut residents are cautioned against the use of “Holographic Wills.” A Holographic Will is a Will that is completely handwritten by the testator and signed and dated by him/her, with or without a witness. This approach simply does not work in Connecticut. Even though these writings certainly indicate your intent, your property will still pass via the State of Connecticut Intestate Succession Laws.
A Will that is validly executed in one state, is valid in any state. In order for a Will to be valid it must have been executed by a person who had the “testamentary capacity” to execute the instrument. Under most circumstances the maker of the Will must be 18 years-old and have the mental capacity to execute the Will. Someone has mental capacity if they understand the nature and extent of their property. They must also understand “the natural objects of their bounty,” meaning their children if they have any. Finally, to have the mental capacity, the maker of a Will must also understand the practical effect of executing their Will.
When designing your estate plan our mantra is “Plan for the worst, and hope for the best.” These tricky waters should not be navigated by amateurs, and one should always seek competent counsel. The more your attorney knows about your particular situation the better they can plan for you and your family. Some folks are embarrassed to discuss their family problems. Remember, what you tell your attorney is strictly confidential. Your attorney has sworn to protect that information and only use it for your benefit. The truth is, almost every family has issues, and that is normal. Your attorney is there to help you, not judge you.
George P. Guertin, Esq.
Guertin and guertin, LLC
North Haven, Connecticut