If you died tomorrow without a will, who would inherit your assets? Who would be your children's guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid?
Do you really need a will, even if you're broke? What if you just want everything to go to your spouse?
Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable.
What is a will?
NL: Let's start with the basics. What is a will?
AB: A will is a legal document that lets you decide who gets what, and at what time after you've passed away.
NL: What other terms are there for a will?
AB: Sometimes you'll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they're related documents that usually work together.
NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die?
AB: We'd probably call that a testamentary will. That just means when you die there's this piece of paper that tells people: "Here's what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children," that's a guardian named in a will. That's what you typically would think of in a will that you might see in a movie or in a TV show.
Who needs a will?
. . .
AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will.
NL: A lot of people . . . have said to me, "well I'm broke, I don't have anything to give." Or they'll say, "I don't care, I want my wife to get everything." Would you agree that if you're broke—or if you're married—you don't need a will?
AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I'll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there's drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it's better than nothing in some cases.
Bank account beneficiaries
NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it's important for those people to draft wills?
AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn't need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die.
NL: What happens if there's a conflict between the person you listed as your beneficiary, and your bank account, and what's written in your will? I can't remember who I listed for my bank accounts. I hope it's you Olivia, but I probably need to go back and check.
OL: You're in big trouble if it's not!
AB: That's a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we've said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, "Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we're paying this to your mother."
Preparing a will
. . .
AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way. There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan.
NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a "fill-in-the-blank" printed form?
AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I'd want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online.
The importance of wills for blended families
NL: Let's talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn't have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that's what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will?
AB: So, Bob is married, but he's got two children from a different marriage, and two children with Heather. If he dies tomorrow and he's living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can't say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children.
NL: That's clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem?
AB: With a will, he could choose who gets what in any amount that he wants. Now, there's some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say "This is who I want to have my assets—and here's the way in which I want them to get them."
Concerns involving minor children and young adults
NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide?
AB: It certainly does. If you have minor children, they can't receive the assets until they're 18 years old. Someone can pay for them, and provide for their needs, but they can't get the assets until they're 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, "My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk." They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, "My son is 17 and a half, and I don't want him getting all this money, what can we do?" Well, sadly, there's nothing you can do. The child is going to get that money, because the contract is between the city and the child.
But my friend said, "I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn't be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, "I met with him, and we convinced him the right thing to do was to put this money up in a trust until he's at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn't touch the money until he's at least 25." At the end of their meeting [the son] said, "Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari." That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children.
NL: In effect, what you're saying is that sometimes you want to protect your kids from themselves?
AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age, you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we're worried about other outside creditors, and there's ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents.
. . .
Making sure your wishes are carried out
NL: Let's say that: Bob's son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don't get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make sure that he gets some money as well?
AB: This is a common question that I hear from persons in a blended marriage, where they have children from a prior relationship. They say, "Adam, how do I take care of my children from that first relationship. I know my spouse . . . [is] not going to take care of them after I go . . . what do I do to provide for them?" There's a couple things you can do. First, you could give assets directly to those children when you die. So, in your will, you would say, "Upon my death, Bobby Jr. gets X." But unless you have a lot of money, oftentimes those assets are going to be needed for your spouse.
You could give the assets to your spouse, and just hope that she does the right thing in this scenario and gives them to Bobby Jr., but in my experience, that doesn't usually happen. Other "good reasons" come up for why Bobby Jr. doesn't need that money anymore. I've found that a simple solution can sometimes be a little bit of life insurance. You buy some life insurance, name Bobby Jr. as the beneficiary upon your death. If you want to be a little more sophisticated you'd put that into an insurance trust. Then, when you die, that money is there for Bobby Jr., and he gets it, he's paid out. The second spouse can go her way, and provide for your joint children as she sees best.
Wills and trusts: What is the difference?
. . .
AB: A will is just a piece of paper until you die. One of the big differences between a will and a trust is that a will is only effective upon your death. A trust, on the other hand, can be created while you're alive. It's created by transferring assets (like a bank account or the title to your home) to the name of the trust. Now it's funded, it's called a living trust because it works while you're alive. A good reason why you might want a will while you're alive is if you become incapacitated. Then, somebody you've named in the trust, called a trustee, can step in and manage your assets for you in the event you're incapacitated, you're in a coma. Who can manage the family business, who could sell your home, who could cash out bank accounts, who could provide for you and your family if you're not able to do that, that's a trustee. If you just have a will, we have to wait until you die until we can step in and manage those assets.
Who makes your medical and financial decisions when you are incapacitated?
NL: If instead of dying, Bob ends up in a coma or a vegetative state, what happens? Who makes the decisions for him if he didn't have a will?
AB: . . . If he had a power of attorney that would let somebody act on his behalf in financial matters. If he had a healthcare directive in California they could make decisions for his healthcare. But if he doesn't have any of those things then somebody is going to have to go to court to get what's called a conservatorship. It's expensive, and there's fees. You've got to pay the attorney, pay the court, you've got to pay an accountant maybe to prepare an accounting of his assets. A conservatorship would then allow somebody to act on Bob's behalf, to now make financial decisions, and decisions about his person, about his body, what happens, what kind of healthcare is he going to receive . . . We wish he would have had a power of attorney document, or a healthcare directive, or even a trust to manage his assets.
NL: It seems that whatever money he saved by not drafting a will is now going to cost his family a lot to hire an attorney, and go through this conservatorship procedure—which is not cheap—so it does seem that even though a will is an investment, you're saving money later on, or saving money for your family in the event that something goes wrong.
AB: Definitely. You're also saving frustration, from having to wait on the conservatorship to be approved. You're saving time, and making it much easier for your family to provide for you if you do become vegetative. You're making it much easier for your family to provide for you if you are in a coma.
NL: How long does it take for you to establish a conservatorship, and what happens to Bob in the meantime? I mean, he's chilling in the hospital bed.
AB: If everyone gets along, the procedure shouldn't take too long. But in our scenario, where we had Heather and Bobby Jr., who were at odds with one another, if Bobby Jr. is going to contest this conservatorship, to say that he's in a better position to care for his father, then [Heather], who is now looking around or something like that, it could take quite a while to resolve this conservatorship matter. So again, if Bob had set these things up ahead of time, there wouldn't be that issue facing the family.
Planning for end-of-life care and decision-making
NL: Do you want to be kept alive artificially? Do you want your heart to be restarted? Can you talk a bit about what important end-of-life decisions one might want to take into account, and how a will can provide for that?
AB: There's a lot of important end of life decisions. But I think there's generally three big ones that people are concerned with the most.
First, what do you want to have happen with your remains? Are you going to be cremated? Are you going to be buried? Do you have specific instructions? I had a friend tell me one time he wanted to be cremated, but then I was to take his ashes and scatter them in center field of Dodger Stadium, to which I laughed. I definitely don't think that's possible, but those are the directions he wanted.
[Second] is organ donation. You can say in advance, especially if you're younger and healthy, "If I die, I want my organs to be donated." Now, your family doesn't have to make that decision. Is that something they object to, they would want to do on your behalf? You can just tell them ahead of time.
Third, the end-of-life choice. Do you want to be kept alive as long as possible? Do you want to have your life taken off of life support as soon as they can? Or, like you mentioned, do you have other specific measures? "I want to receive water—but not food." "I want painkillers—but not something else" All of that you can spell out in a healthcare directive so your family doesn't have to try and figure it out.
What do you want done with your remains (e.g., burial, cremation, organ donation, etc.)
NL: When it comes to the remains that's also something to consider. Because I, for example, don't care. If there's anything that can help someone—whether it's my eyeballs, corneas, ears, heart—they are welcome to take it. But I totally understand—and I respect—that for a lot of people, there's parts of their body that are very personal, and that they wouldn't want to give up.
There are obviously the eyes and facial features. They do facial transplants now, and that could be very weird for your family, or uncomfortable knowing that your face is on another person. Likewise, for people who have experienced horrific accidents, they have genital transplantations, which I think most people would find kind of weird and would want to make a specification either way in their will. So, I think that's definitely something you want to include as well, as far as what should be donated, and what should they not take from you.
AB: In a living will, or a healthcare directive, you can be as specific, or as broad as you want. You can just say simply "I agree to all organ donation," and now your family gets to make those decisions. Or, you can say, "I agree to organ donation, but I want to keep my eyes, and a few other parts too." So, ahead of time, you can tell your family what you'd like done. We were saying during a break, I think it was Olivia, one of the important things is not to have any surprises. You don't want to surprise your family with any strange requests once you've passed away.
NL: Too late for that, my will is drafted. Actually, Adam, I wanted to ask you . . . You did the will for Olivia and I, and I recall there being a conversation about what parts of the body to donate. Olivia specifically…
OL: Your heart belongs to me!
NL: Okay. Well, what I was thinking was that I recall [Olivia] saying that [she] didn't want [her] brain transplanted into another person. Adam, is that a real thing? Can they do brain transplants yet? If you don't want to get in the middle of this lover's quarrel, I completely understand.
AB: Well, Neer, I don't know if Olivia is going to want your brain, but whether or not they can do a brain transplant, you'd have to speak with a neurologist. To answer it from the legal perspective, you can put whatever restrictions you want into your healthcare directive.
NL: . . . Let's get back to Bob quickly. Let's kill Bob again . . . he's dead and now there's no will, so there's no provision as to what should be done with his remains. Bob wants to be cremated—that's what was done with his parents' remains—that's just what he wants to do. Heather, on the other hand, has strong beliefs that when someone dies they should be buried. Bobby Jr. watched a really cool YouTube video about how some people are being frozen so that in the future—if it's possible to resurrect them—they are kept intact. Now we have a dispute: There's Bob's wish, which is not written anywhere in a will. There's Heather's belief that people should be buried. Then, there's Bobby Jr., who wants to deep-freeze dad. What happens under the law in this scenario?
AB: Well Neer, I've had several people tell me that they want to be frozen—like Walt Disney or Ted Williams—when they die. I've always said, "That's fine, but how are you going to pay for it?? I don't think freezing is free yet, so someone has to pay for that. So, I'd probably say to Bobby Jr., "Unless there's enough money in this estate to pay for a frozen father, your idea is no good." Ultimately the answer, as you know with all legal things, is: If you can't decide, then you end up in court, and the judge will tell you what to do. So, in this case, they're just going to have to work it out. The family will have to compromise. This is another good reason of why having a will, or a healthcare directive would avoid this dispute.
NL: What happens if they just can't compromise? Heather and Bobby Jr. each have their own opinions, they try settling, mediating, nothing is happening, they just can't agree.
AB: Then they're going to end up in court explaining to the judge why their reason for Bob being buried or cremated is the most important, and the judge will make a decision.
The right time to get a will
NL: In your law practice, when do most people come to see you for a will?
AB: I've joked that if we were to ever advertise, we should do it in a travel magazine. Most people come to see me right before they're going to take a long trip. I guess they're thinking [that] if the plane goes down, they want to be prepared. The second most common time people come to see me is after somebody they know has died, and now it's on their mind.
I guess the third most common would be children who are just concerned about the ailing health of their parents; they want to make sure the affairs are in order before anything happens to mom and dad. But really, if we did it right, everyone should do this early. It is much easier to get things in place earlier in your life than to wait at the end when you have more complicated family arrangements, and a more complicated maze of assets.
When you have a child, or are about to have a child is a great time to get your affairs in order. You need to choose a guardian. My wife and I took three years to decide who was going to be the guardian. Now, I don't care so much that I have children, but before the first one came, we just could not decide who would be the guardian of our children, and made it much more complicated than we needed to.
Before you buy a home is a good time to do your estate planning. Once you own a home, the post-death administration is more complicated because you owned real estate than before you bought the house.
Before you inherit assets is a good time to set up an estate plan that is going to provide for your own family. I've also found recently with children going to college away—out of state or in a foreign country—is a good time to have that child set up a very simple will, or to at least give you power of attorney for their own healthcare, and their own financial decisions.
When is it too late to get a will?
NL: . . . Obviously, when you're dead it's too late to get a will, and if you're incapacitate completely, or if you're in a coma. But is there anything in between where it's just too late, you just have to wait it out?
AB: One of the hardest areas for us as estate and trust attorneys is determining when somebody has lost the capacity to sign a will or a trust. It's a very gray area, it's heavily litigated. To avoid any of that litigation, you want to have documents signed well in advance—so there's no questions as to whether or not your parents—or you—had capacity.
NL: Can you give an example of when someone has questionable capacity, something that could be challenged in a court of law?
AB: Someone who is not able to make decisions for themselves. They live with the assistance of others, they have a documented diagnosis of dementia or Alzheimer's. Now, that doesn't mean they can't sign a legal document, because they can have moments of clarity. It just means you're in for a probable lawsuit to try and prove that they did have capacity.
–END OF INTERVIEW—
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