A last Will and Testament

By: Heidi McGee Esq.

Recently, our LegalShield Department has seen a noticeable uptick in requests for consultations on Estate Planning matters, particularly as pertains to whether one’s circumstances recommend forming a Trust as a part of that Estate Plan.

However, before assessing whether a Trust is a good fit, the conversation inevitably turns to whether or not the individual has a Last Will and Testament in place, and the recommendation that every Estate Plan include a Will, as a critical component.

A last Will and Testament is a formal legal document that serves as a “road map,” that is left behind, detailing how one’s assets are to be gifted after one’s death.  The Will reaches only individually-owned assets, not jointly owned “survivorship” assets.  Indeed, if you do move ahead with Trust formation and successfully transfers ownership of your assets out of your individual name into ownership of the Trust, there may be no individually-owned assets for the Will to address.

However, whether because all of your assets are moved into a Trust  or because your asset profile is modest and you don’t think that it is really necessary to formally map out how it should be distributed, good planning includes considering the possibly of after-acquired assets coming into your Estate and taking steps accordingly.

An after-acquired asset could be something as simple as a refund on an insurance premium, that comes in the form of a check made payable to the deceased party or their Estate in a relatively modest amount.  However, other examples that people do not think about, or perhaps avoid thinking about, is the possibility that their death could be due to a workplace or automobile accident or medical malpractice.   Such untimely deaths may give rise to legal claims against the responsible party or parties.   These claims and the possibly quite significant financial compensation obtained would become the property of the Estate to pursue and the Estate would ultimately receive a damage award or settlement as assets to distribute.

Without a Last Will and Testament in place, any damages would be distributed to your heirs at law subject to state law of intestacy, which may or may not be consistent with what you would choose.  For example, there is no ability to omit individuals, allocate shares or make bequests to charity.  Therefore, having a Will in place to specifically address your testamentary wishes provides certainty that your assets, whether known or acquired by your Estate post-mortem ,are directed in accordance with your wishes and values.