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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 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 provide 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 at 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 some states, a will is the primary legal tool used to appoint guardians (backup parents) for orphaned minor children. Even if your state provides other means to make this critical appointment, this is good information to know if you move to such a state. When selecting a guardian, always choose 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 fundamental beliefs and values, not to mention who adore your minor children. Finally, speak with them and make sure they are willing to take on 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 provisions to leave assets to your children. That can be done by naming them as beneficiaries on certain accounts. Work this out when you are creating your estate plan.
Send Your Estate to Probate
Many people mistakenly believe that a valid will avoids probate if they become incapacitated or die. 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 red tape involved (after all, it requires the involvement of an attorney and a probate judge), the additional expenses, and the public nature of the process (anyone can get a copy of your will and the inventory of your assets). If these potential drawbacks are something you would prefer to avoid, then you may wish to consider alternatives to probate.
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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