Barnes Lipscomb & Stewart PLLC

When Is a Child Not A Descendant?

“Wills and trusts, instead of designating a specific person to inherit, often name a group or class of people such as your ‘children,’ ‘issue’ or your ‘descendants.’”

Not using specific names and terms open to definition could significantly impact who might inherit from your estate or trust. There are situations where some people may choose to deliberately restrict or expand the definition of the group, which might be included in these definitions, explains the article “Who Is Your Descendant: Intentional Limitations Or Broadening Of Definitions In Your Will Or Trust” from Forbes. For some people, creating a new role of a special trust protector who holds a limited or special power of appointment to determine who should be included or removed from the definition of “issue” or descendant is worth considering.

What might arise if the wish only considers children descendants if they belong to a particular faith? Is this type of legal restriction permitted? Clauses limiting heirs to members of a particular faith or a sect within the faith may raise questions about the constitutionality of the clause. Potential heirs excluded under such provisions have argued that a religious restriction on marriage violates constitutional safeguards under the Fourteenth Amendment protecting the right to marry.

Courts have held clauses determining if potential beneficiaries qualify for distributions based on religious criteria enforceable, if the potential beneficiaries have no vested interest in the assets. Another court upheld the provisions of a will conditioning bequests to their sons as long as they married women of a particular faith.

These decisions are narrowly tailored to the specific fact patterns of the cases, since individuals are generally allowed to disinherit an heir with the exception of a spousal elective share or a community property interest. The courts have reasoned that the restriction is not on the heir to marry but on the right of the testator to bequeath property as they wish.

An alternative approach is to create a single trust for all heirs mandating the funds in the trust be used for the cost of religious education, attending religious summer camps, taking relevant religious studies, religious institutional membership, etc. The trust could use the assets to encourage religious observance. However, it may only partially address the question. What about the remainder of the assets—should it be used for all heirs regardless of religious affiliations?

An estate plan compliant with Islamic law may involve a different determination of who is a descendant. The Sharia laws of inheritance are similar to the intestacy statute. One-third of the estate may be distributed as the decedent wishes. However, the remainder must be distributed as mandated under Islamic law. The residuary inheritance shares after the first third are restricted to Muslim heirs. Additional laws prescribe specified shares of the estate to be distributed to certain heirs, depending upon which heirs are living at the moment of the decedent’s death.

Suppose you or a family member is lesbian, gay, bisexual, transgender, or queer (LGBTQ). The law may not address the unique considerations regarding who may be considered a descendent. Special steps may be needed to carry out your wishes as to who your descendants are. What if you view a particular child as your own, but share no genetic material with a child? Children may be adopted or born through surrogacy, so neither parent nor only one parent is biologically related to the child. While some states may recognize an equitable parent doctrine, this may be limited and not suffice to protect the testator.

There are many new complexities for determining who is a descendant, and these issues are complicated and evolving. Changing family structures and religious beliefs based on different values all impact estate planning. A special trust protector may make decisions when uncertainty arises from provisions in a will designed to carry out the wishes. This is a relatively new role and not permitted in some states, so speak with your estate planning attorney to protect your wishes and heirs.

Reference: Forbes (Aug. 4, 2023) “Who Is Your Descendant: Intentional Limitations Or Broadening Of Definitions In Your Will Or Trust”

Who Should Be Your Executor?

“The person you have placed in charge of your estate under a Will is called a ‘Personal Representative’ or ‘Executor/Executrix.’”

Most people mistakenly believe they must name their eldest child as their executor, the person in charge of administering their estate. According to the article “Eldest child, best friend, C.P.A.—Who should you put in charge of your estate?” from Coeur d’Alene/Post Falls Press, even people who understand they are not legally required to name their eldest child still think their oldest child is supposed to be their executor.

This may have been a social norm way back when. However, those days are gone. Here is what you should consider when determining who you want to be in charge of your estate.

First, what estate planning documents does the executor need to deal with? An executor is primarily concerned with your Last Will and Testament. This document states what you want to happen to your possessions and assets when you die. It also includes your choice of executor.

Not everyone has a trust. However, you’ll likely rely on a trust if you have assets you don’t want to go through probate. The instructions in the trust have nothing to do with the will. The trustee is in charge of the following the directions in the trust, which spells out exactly what you want to happen with any assets owned by the trust.

Your executor and trustee can be the same person. However, they don’t have to be. They need to be someone you have a high degree of confidence in, capable, self-starting, organized and able to navigate the relationships of the other family members and beneficiaries of your estate.

While your will and trust will have specific language, there are also many things an executor and trustee will need to make discretionary decisions on. For instance, if your executor sells your home to distribute proceeds to named beneficiaries, they’ll decide which realtor to use, what the listing price should be, what offers to consider, which offer to accept, what terms of acceptance should include, etc.

You’ll also need to be confident that the person you name will honor your wishes and do their best to achieve the desired outcomes for the benefit of your heirs. If the executor/trustee is also a beneficiary, they must understand their fiduciary responsibilities. They are responsible for putting the estate and not their own interests first.

They’ll also need to be highly organized and able to handle duties without procrastinating. If they are not, they may decide to retain an estate planning attorney to be organized and manage the details. There’s nothing wrong with doing this. It may be impossible for a layperson to know precisely how to manage an estate and probate in highly complex estates.

Consider all of the people who have an interest in your estate or legal rights to be made aware of its administration. They may include children, stepchildren, non-family member beneficiaries, charities, etc. Your executor may need to deal with all of them.

Finally, be realistic about who you select as an executor and trustee. If they need to work together, do they get along? If you know they haven’t seen eye-to-eye on anything since fifth grade; it’s not likely to change because you’ve given them this responsibility. An estate planning attorney may be a better alternative to avoid family feuds or long-standing battles erupting over your estate.

Reference: Coeur d’Alene/Post Falls Press (Aug. 6, 2023) “Eldest child, best friend, C.P.A.—Who should you put in charge of your estate?”

How to Pass on Family Heirlooms with Fewer Estate Battles

“There are better—and often more creative—ways to plan and divide that can avoid family squabbles over cars, jewelry, furniture and household items.”

Family feuds are more likely over Aunt Josephine’s jewelry than the family home. Putting sticky notes on personal items before you die or expecting heirs to figure things out after you’ve passed often leads to ugly and expensive disputes, says a recent article from The Wall Street Journal, “Pass On Your Heirlooms, Not Family Drama.”

Boomers handling parents’ estates and assessing their personal property are having more conversations around inheritance and heirlooms. However, there are better ways to plan and distribute property to avoid family fights over cars, jewelry, furniture and household items.

The person you name to handle your estate, the executor, typically distributes personal property. Therefore, pick that person with care and clarify how much power they will have. An example of this comes from a police officer in Illinois who has been settling his father’s estate for nearly two years. His father owned more than twelve vehicles, a water-well drill rig and two semitrailers of car parts and guns dating back to the Civil War. He also listed 19 heirs, including stepchildren and friends. He told his son he knew he could handle everyone and the stress of people who “aren’t going to be happy.”

If you want a particular item to go to a specific person, make it clear in your will or trust. Describe the item in great detail and include the name of the person who should get it. A sticky note is easily removed, and just telling someone verbally that you want them to have something isn’t legally binding.

Without clear directions, one family with five siblings used a deck of cards and played high card wins for items more than one sibling wanted. Only some families have the temperament for this method.

In one estate, two sisters wanted the same ring. However, there were no directions from their late parents. An estate settlement officer at their bank had a creative solution: a duplicate ring was made, mixed up with materials from the original ring, and each daughter got one ring.

Ask your estate planning attorney how to address personal heirlooms best. In some states, you can draft a memo listing what you want to give and to whom. It is legally binding, if the memo is incorporated into a will or trust. If not, the personal representative can consider your wishes. Make sure to sign and date any documents you create.

Get heirlooms appraised to decide how to divide items equitably, which to sell and what to donate. If heirs don’t want personal property, they can donate it and use the appraisal to substantiate a tax deduction. Appraisals will also be needed for estate tax and capital gains tax purposes.

Reference: The Wall Street Journal (July 30, 2023) “Pass On Your Heirlooms, Not Family Drama”

How Does the IRS Rule on Inherited IRAs Work?

“Before the original SECURE Act, IRA owners who died were able to leave their accounts to their children, grandkids, or other non-spouse individual beneficiaries, and heirs could stretch required minimum distributions (RMDs) over their own lifetimes, thus allowing the funds in the accounts to grow tax-free for decades.”

Before December 2019, when the SECURE Act became law, inherited IRAs were powerful means of passing along wealth. However, Congress saw this as a loophole and ended it with the 10-year clean-out rule. IRA rules are more complicated now, according to the article from Kiplinger, “IRS 10-Year Rule for Inherited IRAs: Kiplinger Tax Letter.”

There are exceptions to the clean-out rule for beneficiaries who are surviving spouses or minor children of the account owner or beneficiaries who are chronically ill, disabled, or not more than 10 years younger than the deceased IRA owner. For minor children, the exception applies until they reach the age of 21. Then they must empty the account within 10 years.

Unlike other beneficiaries, a surviving spouse may take an inherited IRA as their own. The old rules also apply to people who inherited IRAs before 2020. They can continue to take advantage of the IRA stretch strategy.

For everyone else, the 10-year rule has led to much confusion. Do withdrawals have to be equal amounts every year for 10 years, or can different amounts be taken out at different times during the 10 years? The IRS interpretation originally led many professionals to think annual payments weren’t required and an heir could wait 10 years, then take all the money out in one lump sum.

Further confusion was created in March 2022 when the IRS issued proposed rules based on whether or not the original IRA owner died before or after their first beginning date for taking Required Minimum Distributions. If they died before taking their first RMD, beneficiaries needn’t take annual distributions but could wait until the last year or skip years as long as the IRA was depleted in 10 years. Estate planning attorneys and retirement professionals were fine with this provision.

What came next surprised them. If the IRA owner died after the start dates, annual RMDs must be paid to the beneficiary in years one through nine, with the account depleted in year 10. The beneficiary would calculate annual RMDs based on their own life expectancy. The younger the beneficiary, the smaller the RMD.

The latest IRS proposal on the 10-year clean-out rule still needs to be finalized. Practitioners want the ten-year rule to apply consistently, whether or not the IRA owner dies before or after the RMD beginning date.

There’s some relief. In October 2022, the IRS said beneficiaries of IRAs inherited after 2019, for which the decedent owner was already subject to RMDs, won’t be penalized for taking distributions in 2021 or 2022. The IRS has just extended that relief for such beneficiaries to 2023.

Confused about your own inherited IRA situation? Speak with an experienced estate planning attorney to ensure that you manage your inherited IRA per the latest IRS rules.

Reference: Kiplinger (July 30, 2023) “IRS 10-Year Rule for Inherited IRAs: Kiplinger Tax Letter”

Make Power of Attorney Part of Your Estate Plan

“Many people will suffer cognitive decline as they age, and that can seriously impact their ability to manage their assets.”

At some point, it becomes necessary for aging people to hand over control of their finances. One aspect of estate planning is naming an agent or fiduciary who can take control of finances if you become incapacitated or experience significant cognitive decline, explains the article “Don’t Forget to Build This Into Your Retirement and Estate Plans” from yahoo! finance.

A financial agent makes financial decisions with you or on your behalf. The exact nature depends upon your preference. However, most agents act as co-signatories or solely control your financial accounts. A co-signatory means you and the agent must jointly authorize a financial transaction. In contrast, a sole controller means only the agent can authorize financial transactions to and from your accounts.

This is a type of Power of Attorney in which you authorize another person to act on your behalf in a legal capacity. The purpose is to protect your finances against cognitive decline often accompanying aging. When it’s unnoticed, the individual can continue making financial decisions, and they may not always be correct. Cognitive decline is why seniors are so vulnerable to financial exploitation and fraud.

A study from the University of Southern California found that cognitive decline significantly reduces wealth among households whose financial decision-makers experience these declines.

Putting a Power of Attorney in place before it is needed can prevent many issues. Children or another trusted family member are usually selected to serve as agents. The issue of timing is another concern—the agent should be appointed before irreversible mistakes are made. If control of finances is handed over too early, the elderly parent can be forced to live as a competent adult who needs permission to make routine decisions.  However, waiting too long exposes them to financial mistakes.

How should you manage the timing? First, have regular medical checkups with a doctor who can track your mental status over time. Select your agent before issues begin as part of your estate planning. Consider a Springing Power of Attorney, allowing your agent to take charge if a doctor or court declares you unfit. Medical incompetence is a high bar, and financial mistakes can be made long before you meet a doctor’s standard for incapacity.

Another option is speaking with your agent regularly. Ask for their advice and follow it. If you trust them, you can have your estate planning attorney prepare a Power of Attorney form to suit your individual needs. Do you want your agent to manage every aspect of your financial life or focus on day-to-day bill paying? Does your situation require one person to pay bills and another to manage investments?

Cognitive decline impacts many older adults and can expose them to serious financial risk. You can protect yourself from this risk by appointing a trusted agent in a timely manner to manage your legal and financial lives.

Reference: yahoo! finance (July 28, 2023) “Don’t Forget to Build This Into Your Retirement and Estate Plans”

Transferring Property to Heirs? Skip Top Five Mistakes

“Death is inevitable, but dying without an estate plan is not. Estate planning is a must for property owners, no matter how uncomfortable the subject might make you.”

It is not difficult to ensure the smooth transfer of ownership of your property to a spouse, children, or other heirs, as long as you have an estate plan created by an experienced estate planning attorney and know what pitfalls to avoid. Most importantly, says the article “I’m a Financial Planner: Here Are 5 Mistakes You Must Avoid When Transferring Property to Heirs” from GoBankingRates, if you die without a will, your state’s intestate succession or next-of-kin laws will determine who inherits your house if yours was the only name on the deed.

Next-of-kin succession varies by state, but for the most part, the priority order is first the surviving spouse, biological and adopted children, parents, and siblings, followed by grandparents, aunts, uncles, nieces, nephews, cousins and extended family members.

You’ll want to know how your state treats intestate property to avoid unwanted surprises for your family. For instance, in some states, full siblings are prioritized over half-siblings, while in other states, they are treated equally.

The biggest mistake is dying without a will and an updated deed. In some states, the property will need to go through probate if the surviving heir is not in co-ownership of the house, regardless of what’s stated in the will.

The solution is simple. Add an adult child or the person you intend to be your executor to the property's deed via a warranty or quit claim deed. This prevents the family home from going through probate and seamlessly transfers to the individual you want to handle your estate after you’ve passed. In particular, this should be done once one spouse in a joint-owning couple dies.

There are four general types of property ownership. The legal system treats them all differently. They are property with the right of survivorship, property held in a trust, property subject to a will and property for which the spouse does not have a will.

If two spouses purchase and jointly own a property, the right of survivorship dictates that the surviving spouse automatically receives the decedent’s half and becomes the sole owner. This is the simplest and easiest outcome, since it avoids probate and the need to alter the deed. However, it’s not always the case.

A surviving spouse might need to change their deed if a partner dies and the deed didn’t automatically transfer property after death. If only one spouse was on the deed, they may have to go through probate (if there was a will) to transfer the home into the surviving spouse’s name. The spouse may need to file a survivorship affidavit and a copy of the death certificate to ensure that the title is properly in their name.

Should you transfer property while you’re still living? It may solve some problems but create others. If a primary residence is transferred to an adult child and they sell it not as their primary residence, it could lead to a large capital gains tax bill. However, if the child inherits the property after your death, the heir will enjoy a stepped-up tax basis and avoids capital gains taxation.

Before taking any steps to arrange for the transfer of the home after passing, talk with the person or people to make sure they want it and the responsibilities associated with owning a home. This is especially true if there’s more than one heir with different opinions.

If children don’t get along or are in different financial positions, leaving one property for all of them to manage together could lead to family fights. Talk with them before putting your wishes into your estate plan to avoid unnecessary resentment and, in the worst case, litigation.

Reference: GoBankingRates (July 26, 2023) “I’m a Financial Planner: Here Are 5 Mistakes You Must Avoid When Transferring Property to Heirs”

How Does an Intentionally Defective Grantor Trust Protect Generational Wealth?

“Sometimes it might take an IDGT, or intentionally defective grantor trust, to preserve generational wealth. But how does that work?”

Most parents want their children to inherit as much wealth as possible, which drives their focus to shield heirs from unnecessary taxes when they inherit. As of this writing, federal gift and estate tax laws are very friendly for building generational wealth, says a recent article from Kiplinger, “One Way to Secure Your Child’s Inheritance in an Uncertain Tax Future.” However, this is temporary, as the Tax Cuts and Jobs Act will expire in 2025. When it does, gift and estate tax exemptions will be cut in half.

The incentive to take advantage of the current tax laws is even greater for those living in one of the 17 states with their own estate or inheritance taxes, especially considering those states’ exemptions are considerably lower than the federal estate taxes.

How can you transfer the most wealth possible to heirs? The best tool is often the Intentionally Defective Grantor Trust or IDGT.

The IDGT, despite its name, is not at all defective. Removing assets from an estate lowers or eliminates taxation on the estate and heirs. By selling assets from the estate to a grantor trust, they are no longer subject to estate taxes. The trust then pays an installment note over a number of years, which is designated when the trust is created.

So, why is it called Intentionally Defective? The term refers to the fact that the trust is not responsible for paying its own income taxes. Instead, they pass to the grantor or person who created the trust. Consider an estate with $20 million placed in an IDGT. This might generate a $500,000 tax bill, paid by the grantor. This accomplishes two things: The $500,000 paid in taxes is removed from the estate, lowering the estate’s value and the estate tax. Second, the trust is not responsible for paying income taxes on the appreciation of assets so that it can grow faster.  Since the trust is not subject to estate taxes, any appreciation of assets inside the trust won’t add to any estate taxes due upon the grantor’s passing.

IDGTs and S Corporations. Many family-owned businesses are S-corporations that shield personal assets from business-related liabilities. If someone successfully sues the business, any judgment will be placed on the business, not the family’s assets. S corp owners hold shares in the corporation, which can be transferred to the IDGT. When family members move their stock into the trust, business ownership is transferred to heirs free of estate tax. If the business grows between the time the trust is established and your death, the growth happens separately from the estate, so there is no estate tax implication to continued business growth.

What’s the downside? The IDGT removes assets from the estate and provides cash flow in installment payments to fund retirement.  However, if you die before the installment term ends, the trust pays out the rest of what it owes to your estate, which increases the value of your estate and the estate taxes owed. However, there’s a remedy for this. The IDGT can be set up with a self-canceling installment note or SCIN. The SCIN automatically cancels the trust’s obligation to pay installments upon your death.

Remember that you will be responsible for the trust's tax liability, so don’t gift so many assets to the trust that you’re scrambling to pay the tax bill.

IDGTs are complex and require the help of an experienced estate planning attorney to ensure that they follow all IRS requirements.

Reference: Kiplinger (July 28, 2023) “One Way to Secure Your Child’s Inheritance in an Uncertain Tax Future”

Estate Planning Checklist to Put Affairs in Order

“An estate plan can give you peace of mind that things you value will be distributed according to your wishes when you die.”

Estate planning goals include designating who will receive your property when you die and who will be in charge of your personal, legal, and medical affairs if you become incapacitated. A well-constructed estate plan ensures that heirs receive assets, while managing and minimizing estate taxes, gift taxes and other taxes.

Preparing information for meeting with an experienced estate planning attorney will be easier if you break out the tasks into these seven steps, explains the recent article, “Estate planning checklist: A 7-step guide to getting your affairs in order” from Fox 54.

Create an inventory. Tangible assets include your home and other real estate, vehicles, cars, boats, RVs or motorcycles, coin collections, art, antiques, or other personal possessions. Liabilities also need to be listed. These include mortgages, lines of credit, credit card debt, student loans and any outstanding debts.

Determine the family’s needs. Start by preparing a last will and testament with an experienced estate planning attorney. Next, make sure you have enough life insurance. How much you need depends on whether you are married, if your family’s current lifestyle requires two incomes and if you have dependent children.

Your will is the document used to name a guardian for your minor children, and a backup guardian, in case the primary guardian cannot or will serve. Without a will, including your wishes for a guardian, the court will choose who will raise your children. It might not be the person you would want.

Establish directives. An estate plan may include a trust. With a revocable legal trust, your assets go into the trust, and a trustee manages the assets. If you become incapacitated, the trustee takes charge of the assets and their distribution. When you die, the trust transfers assets to designated beneficiaries, bypassing probate. You can also have your estate planning attorney create an irrevocable trust, which can’t be changed once created.

A medical care directive, also known as a living will, spells out your wishes for medical decisions, if you can’t make those decisions yourself. Depending on your state of residence, these documents may be combined into one, known as an Advance Care Directive.

You’ll need a Power of Attorney to give another person the ability to manage financial affairs if you cannot. A designated agent can pay bills and manage all assets. Your estate planning attorney will help you determine how much power to give your agent. You could give your agent the power to pay bills and manage investments but not to sell your home, for instance.

Review beneficiaries. Most retirement accounts, investment accounts and insurance policies include the option to name beneficiaries who receive assets upon your passing without going through probate. People often forget whom they named on accounts established decades ago. Never leave a beneficiary designation blank. If that happens, the assets will be distributed based on the state’s property distribution laws.

Plan for estate taxes on the federal and state level. Only very large estates are subject to estate taxes on the federal level. If you have an estate exceeding $12.92 million, you may consider a Grantor Retained Annuity Trust, or GRAT, a type of irrevocable trust. Some states have estate taxes, and some states have inheritance taxes.

Speak with professionals. Even simple, straightforward estates benefit from the knowledge of an experienced estate planning attorney who knows the ins and outs of your state’s laws.

Plan to reassess every three to five years. Life changes, and so should your estate plan. Your estate plan must be reviewed when life circumstances change, including marriage, divorce, welcoming a new child to the family, getting a new job, or being terminated. Even if your life doesn’t change, the laws change, and new opportunities for maximizing your estate and minimizing taxes shouldn’t be missed.

Reference: Fox 54 (July 24, 2023) “Estate planning checklist: A 7-step guide to getting your affairs in order”

What Is Social Security Spousal Benefit for Divorced People?

“If you’re divorced, you might still be eligible to claim Social Security on your former spouse’s record. It’s important to know the rules, so you wind up with the benefits you deserve.”

Social Security is a lifeline for millions of retirees. Those benefits are helpful even to those with a retirement nest egg, especially if it’s not as large as they would like. A recent article from The Motley Fool, “Divorced? Don’t Make This Social Security Mistake,” says most people know that if they’ve worked and paid into Social Security throughout their working life, they generally are entitled to a monthly benefit.

Some people also know that if they didn’t work, but their spouse did, they can claim benefits based on their spouse’s Social Security. However, spousal benefits aren’t just for married people.

Certain benefits are also available to divorced people. A spousal benefit might result in a higher monthly income than you might otherwise get from Social Security.

A spousal benefit can be worth up to 50% of what a current or former spouse may collect from Social Security. Let’s say someone’s entitled to $3,200 a month—their current or former spouse could receive up to $1,600 a month in Social Security.

Worried about claiming Social Security benefits from an ex-spouse because you didn’t have the friendliest divorce? Don’t worry—claiming spousal benefits on an ex-spouse doesn’t impact their benefits. You don’t have to ask their permission to file such a claim.

Suppose that you worked and are entitled to a specific monthly benefit from your own history. However, your ex-spouse’s benefit is higher than your total benefit. In that case, you’ll want to file for the higher benefit—the spousal benefit—to get bumped up to the larger amount.

Here’s another example. If you’re eligible for $1,500 a month from Social Security and have waited until full retirement age to file and then claim a spousal benefit, you’ll be bumped up to a monthly income of $1,600, if your ex-spouse is eligible for $3,200.

When do you file for spousal benefits? If you’re married, you can’t claim a spousal benefit until your spouse files for Social Security. However, if you’re divorced for at least two years, you can claim a spousal benefit once you turn 62, even if your ex-spouse hasn’t filed yet. However, if you want your full spousal benefit, you’ll need to wait until your own full retirement age (FRA) to file a claim.

A few more pointers: you must have been married to your ex for ten years or more to be eligible for spousal benefits from Social Security. If you’ve remarried, you can’t claim a spousal benefit on an ex-spouse’s earnings record, unless your subsequent marriage ended by death, divorce, or annulment.

If you are divorced, you need to know about the potentially larger Social Security benefits because giving up that money could be costly.

Reference: The Motley Fool (July 26, 2023) “Divorced? Don’t Make This Social Security Mistake,”

Where Is the Best Place to Keep Your Will?

“When you fail to plan for your death, your heirs may end up fighting.”

Aretha Franklin may have done the right thing in writing down her wishes.  However, she made a costly mistake resulting in an expensive estate battle over a multimillion-dollar estate, says a recent article from The Washington Post, “Aretha Franklin’s will was in her couch. Here’s where to keep yours.”

Three of her sons battled in court over handwritten wills, one of which was found under her couch cushions. Another was found in a locked cabinet. Her family was put into a pricey, heart-breaking and public battle by failing to be clear about her final wishes and improperly storing the wills. This is not likely the legacy you want to leave.

If you have a will, keep it in a place where it will be secure and easily found. Don’t put it in your bank’s safe deposit box. The bank will seal the box when it learns of your passing, and your executor may need a copy of the will and a court order to open the box. This will add a layer of delay and stress to administering your will. If this is the only option, you may want to add your executor as an owner of the safe deposit box and make sure they have a copy of the key.

What about keeping the will at home? A copy of the will can be kept in a fireproof and waterproof safe.However, be sure that someone else has a duplicate key or combination code. Your executor, personal representative, or another trusted person will need to be able to access the will. The risk here is the possibility of someone intentionally destroying the will, if they are disinherited or think you won’t leave them what they deserve.

Can you leave your will with your estate planning attorney? Creating a duplicate set of original documents, one for you to keep at home and another for your estate planning attorney, is a good option. If you choose this route, make sure the family knows the name of the attorney who has the will. If the practice closes, your heirs may need help tracking down the original will.

In some jurisdictions, you can store your original last will with the court. You give your court a sealed will for a one-time fee. The will can then only be released to you or the person you designate in writing. Remember, the will becomes a public document after you die as part of the probate process.

Wills can also be stored online. However, most states don’t yet recognize electronic wills, so your executor would need to have the originally signed copy, even if you have one stored in the cloud. Remember, no matter how secure a site is, even the Pentagon was hacked. Your will could be compromised in a data breach.

Wherever you store your will, estate planning attorneys often recommend leaving a letter of instruction to serve several purposes, including letting family members know your will exists and where it is stored.

To make things easier for your family during a difficult time, put together a binder and include a letter with a list of important information. The list should include assets, names and contact information for the professionals they’ll need to know, including your estate planning attorney, financial advisor and CPA.

When you update your estate planning documents, which should be done every three to five years, or when there is a trigger event in your life (birth, death, divorce), destroy any old wills. Your estate planning attorney will add a provision saying the new will supersedes any previous versions.

If you don’t have a will, state law will dictate how your property will be distributed, which may not be what you want. Known as dying “intestate,” your assets could go to a relative you haven’t seen in decades or people you don’t know or like. Your children, siblings, or parents may not inherit your property, and fighting will likely occur, especially if significant sums of money are involved.

Having a will and making sure people know where it is doesn’t always ensure that there won’t be a battle over your estate. However, it may prevent a war.

Reference: The Washington Post (July 14, 2023) “Aretha Franklin’s will was in her couch. Here’s where to keep yours.”