Simple Will Basics: Does a Basic Will Suit You?

Simple Will Basics: Does a Basic Will Suit You?

You may be thinking that estate planning or “doing your will” is a fill in the blank exercise.  In some cases, it is.

You know you need to get it done.  But you would much rather spend $1000 on a vacation than $1000 on a lawyer.  To keep costs down, you think you want a simple will.

It is great that you’re making the first step in planning how things will be handled on your death and also if you become incapacitated.

But you do not want to make any missteps that will create the same horror stories for your family that you’ve heard others experience.

I’m going to cover a few instances where a simple or basic will plan is appropriate.  This article will also discuss when simple is not so simple.  In fact, in some cases, simple will can mean big problems and costly attorney fees down the road.

Why Keeping Your Costs Down with a Basic Will is Smart

First off – it is great for you to make a decision to create a will.

A last will and testament determines who gets what, and who does what.

Without a will, Florida law will put certain people automatically in charge of your estate or it will force you heirs to decide between themselves.  A simple will can prevent these real life estate problems:

  • Excluding an out-of-touch child from you estate.
  • Providing to charity or your pets!
  • Putting friends or other relatives in charge of your estate or your minor children.
  • For men, excluding or purposefully including out-of-wedlock children. I’m not just saying children from an adultery relationship.
  • Preventing younger children from inheriting everything at 18 years old.
  • Prevent fighting over custody of your minor children.
  • Preventing financial guardianship proceedings for your younger children’s inheritance.
  • Providing gifts to non-children.
  • Avoiding Florida law defaults on inheritance without a will

Do something to avoid these type of problems. A will is important to have even if you are in debt. For example, if you die as a result of negligence, your estate still must go to probate court.  A wrongful death lawsuit requires your family to file a probate and you need to have a proper will in place.

One common misconception needs to be cleared up.  A will requires probate.  A will does not avoid probate.

If you want to avoid probate of financial accounts, you can do so with properly set up beneficiary designations and joint owners or using a living trust.

If you can’t afford an attorney that focuses his practice in estate planning and wills, then you should try legal aid.  Use an attorney.  Don’t use online forms.  Avoid at all costs.  Online wills are the equivalent to using WebMD to diagnose and treat cancer.

You don’t know what you don’t know.

People using do-it-yourself simple will forms tend to make everything way too difficult than it has to be for your family to settle your estate.  I promise you, it never fails.

When a Will can be Simple and Easy to Create

It is best to give you examples of instances where a will, can and should be basic and simple.  We never want more legal medicine than is necessary.

These are factors making things easier, but are not absolutes.  The more of these factors are present in your situation, the higher the likelihood that a simple will could be appropriate.

Single People – if you are married, you tend to want to coordinate with your spouse.  Know what I mean guys?  If you’re single you call the shots.  You don’t have to debate or compromise with anyone.

1 or 2  beneficiaries who are great people – how easy and absolute to say, “My son, an accountant, is an only child, and he gets everything.”  Or, “My two daughters are the best of friends, they’ll work together if I need anything when I age, they are married to two great guys, and they will split everything 50/50.”

Compare that to…

  • “I have two kids who don’t speak to each other.”
  • “My son is an alcoholic and can’t handle money.”
  • “My daughter in law is a spendthrift.”
  • “I have 4 kids, and they’re all pretty different.”
  • “My daughter is disabled and she can’t lose her benefits.”
  • “I don’t want money to go to my children, I’d rather it go to my grandchildren.”
  • “My wife has two kids from a prior marriage, and we got married in our 60s.”

You see it is not always easy.

There can be underlying family issues that would need to be resolved in your legal planning.  You can’t just plug in names on an EZ form will.

Notice, I did not mention that things are simple when you have no children.  It is usually quite the opposite.  Generally, clients with no children or immediate beneficiaries tend to spend more time with me weighing their options.  You do have estate planning options that you must address when you do not have children… this usually takes time and it is not simple.

Smaller Estates – smaller estate tend to not create massive legal problems down the road.  What is there to fight over if there is nothing left?  No don’t underestimate your net worth.  If your life insurance can pay out $100,000… then there is something there to discuss and it might not be simple.  What if you have equity in your house but not savings?  Houses tend to attach sentimental family value.

Some people think a simple works for anyone who is not a millionaire.  Not always true.  I’ve seen a $100,000 estate cause a lot of probates that could be fixed with something other than a simple will.

Anything over $100,000 to one beneficiary that never had any money is substantial enough to have a serious legal dispute over.  Things might not be so simple then.

The ostrich approach to disclosing your total net worth to your wills attorney is probably not prudent.

Don’t fail to mention assets for sake of making the attorney think you don’t have money – and thus get charged more.  You’re only hurting your family.  The attorney can instruct you with ways to properly title assets that may not involve creating legal instruments.

You’re under 50 years old – I am balancing probabilities here.  If you’re younger than 50, it may not need to spend a lot of money on a living trust plan, or more sophisticated planning unless you have a net worth over $1 million.

You don’t care about avoiding probate after the death of the second spouse – a simple will does not avoid probate.  If you want to avoid probate, it is best to start with a revocable living trust and not a simple will.  Creating a revocable living trust is more involved and will cost more in fees.  With a revocable living trust, you are essentially incurring the probate costs today while avoiding those costs, losses, and headaches after you pass.

You do not have a family history of long-term care needs – many of my clients are over 75 years old.  At that age, the risk of losing a large part of your estate due to paying $5,000 or more per month on assisted living or $8,000 or more per month for a nursing home can deplete assets fast.  You can do advanced estate planning to protect assets.  A simple will does not accomplish asset protection.

You’re okay with your family having to pay probate fees and costs – a will does not avoid probate.  A last will and testament is your ticket to probate court.  Costs and attorney’s fees generally start at $2,000.

The time hassle for your family could start around 30 or so hours with a simple will in probate court.  Unless your family situation warrants reliance of beneficiary designations and joint-ownership, which has its problems, a simple will is not appropriate if you want to avoid probate costs and expenses.

An interesting note, there has been quite a few instances with my older client came in to prepare a simple will and then changed things to a simple living trust to avoid probate.  This happens when you tell your kids about estate planning.  They may want you to make things easy on them and will help with the higher attorney’s fees associated with setting up a living trust.

You have background knowledge about wills, trusts, and healthcare planning – I tend to get through planning quicker with families who have kept their wills updated throughout their lives.

Things get done faster if you work in financial services and have real knowledge about using these legal instruments.  If you attend educational seminars or read books about estate planning, things will go smoother and faster.

Your trust the attorney and the process – many times clients come to me and want simple and less expensive, but the client wants to approach the process with complexity.

It is less expensive for us to work through your desires in meeting one, and then review, edit, and sign it in person in meeting two.  Sometimes the whole process can take one meeting.  This is the most common approach when I do a simple will based plan – it gets things done efficiently and fees are predictable and fair to all.  That is an easier process on me, thus cheaper for you.

However, if you want to review drafts, go back and forth with revisions and your plans, you have me explain anything in writing because you won’t sit down for a scheduled meeting for verbal explanations, then attorney’s fees will be high and your planning is not exactly simple on me.

Cost-benefit comes in the plan for the attorney doing the work.  If you complicate the attorney’s process by dictating your owner process rather than following the attorney’s process, you will pay more.

Big idea of this section à sometimes simple, is not so simple when you think about your family situation, your finances, and your goals.  However, a simple will is definitely appropriate in many situations and “too much legal medicine” is not needed.

Other Important Legal Considerations: A Simple Will May Not Be All You Need

Have you ever dealt with someone at work or in a government agency where…

…you ask a question and don’t get a full answer?

…or you say you want to accomplish X and you were not told that you also had to (or should) take care of Y and Z?

Why don’t you get all the answers and instructions at once!

That happens all the time at my office.  People call and say, “I want a simple will.”

We could say, “Okay, that will be $200, come on Wednesday and sign it.”

That’s it.

What was left out is a couple big questions, “what happens if you become incapacitated… maybe in a car accident or with dementia or Alzheimer’s?”  “What if you want to avoid probate?”  A will does not avoid probate. “Do you want to provide your children with an asset protected inheritance?”

That’s when giving you exactly what you ask for, a basic will, becomes a very expensive problem…

You also need to consider and create a durable power of attorney, designation of health surrogate with HIPAA authorizations, and a living will.

Without these legal instruments for incapacity planning, your family faces guardianship court to manage your affairs and make health decisions for you.

What is guardianship?  Guardianship court is probate, while you are alive. Expensive.

Guardianship court easily starts at $6,000 in fees and requires monthly or annual fees to keep up with.

This can happen when you ask for a simple will and get just that.

If we just plug in names into a simple will form, then we’re not taking in account of financial issues, family issues, or point out relevant potential legal landmines down the road.

Now, of course, despite this entire article you can proceed with a simple will knowing that it will cost your family money out of your estate down the road. If you want to do something, knowing the risk, I’m not going to stop you.

Why All of this Price Stuff about Simple Wills Troubles Me

I get it.

You would rather spend $1000 on a vacation than $1000 on an attorney for a will.  Trust can reach $7,500 in certain types of complicated scenarios.

Heck, a law school friend at a big time law firm doesn’t want to pay for my legal planning and advice.

You probably think that a $200 online will does the same thing as what an attorney could do.

Here’s the big difference…

The online will form is limited to your knowledge and the options in the online form.  The online will form will not tell you what will actually happen with the stuff you input into their forms.

The outcome for your beneficiaries is less predictable with cheap online will forms. That is why you have estate fights and problems.

You don’t know what to do?  The estate planning attorney is there to help you define the result.  The online form can’t give you reasoned help with your will or your estate.

Now for the problem I have trouble with…

You want to avoid financial loss and headaches for your kids and beneficiaries, right?

Because of all the bad planning that people do…

  • They use online wills.
  • They keep their plans out of date.
  • They avoid paying more money now that would save a lot of money later.

Most estate planning attorneys, like myself, make a living based on bad (or less than perfect) planning that needs to be fixed.   We see the wrong way to do things.  We see how much families hate dealing with their parent’s bad planning.

We want to help prevent bad planning.

It just requires our time, which you pay for.  It also does require periodic maintenance (depending on your age and personal situation).

We’re faced with: (a) making more money fixing problems versus (b) trying to get you to pay a comparable attorney fee rate to prevent these problems associated with simple planning.

You want that $200 basic will? That makes no sense for a decent attorney to say yes to that job.  We actually make a better living by saying “no” to that offer.   You’re not going to get sound estate planning for that rate.

Rather than say “no” to you, I’ve created an office process to make things fair on me, and also fair on you.

Your Next Step…

If you would like to find out if a simple will is appropriate, or you would like to start planning, then CLICK HERE to learn about our fees structure and process for planning with simple wills or other ways to approach effective estate planning.

Legal and Financial Advice for Caregivers and Families

Florida Board Certified Elder Law Attorney Kellen Bryant assists caregivers and families with asset protection planning for long-term care, wills, trusts, and administration of estates in probate court.  Our law firm practice assists families in Northeast Florida and parts of central Florida from our Pasco County, Florida office.  Click the button to contact us for additional information, to ask a question, or to schedule a consultation.

 

Kellen Bryant

Kellen Bryant is an estate planning and elder law attorney practicing law in Jacksonville, Florida. A native of Jacksonville, Kellen graduated with honors from both Stetson Law School and FSU. Kellen has previously worked for judges and a large law firm . Kellen is currently a member of NAELA, Florida Bar Elder Law Section, and the Florida chapter of NAELA. Kellen is the author of many educational legal guides, which can be found at www.kellenbryantlaw.com.