Everyone Needs a Will

When asked why they hadn’t done their estate planning; 47% of survey respondents said that they “just hadn’t gotten around to it.” Some 29% felt that “they didn’t have enough assets to leave anyone.”

Interestingly, more people have attended to their end-of-life medical issues than to creating a plan for their property. Fully 53% of respondents reported having a health care power of attorney in place.

The Hot Buttons

As difficult as motivating people to take care of planning their estate has been in the past, it may become even trickier in the future. The temporary doubling of the amount exempt from the federal estate and gift tax, to $10 million for singles and $20 million for married couples (plus inflation adjustments), means that the vast majority of Americans no longer need to plan to achieve tax savings. There are exceptions in states that continue to levy their own death taxes (estate tax, inheritance tax, or both), because states typically have much lower thresholds for taxation. Still, only a minority of states have held on to their death taxes.

In the last century, trust departments could encourage their customers and prospects to establish marital deduction trusts for very major tax savings, to motivate them to see an estate planning attorney promptly. No longer. The advent of the portable federal exemption means that the basic tax benefit of such a trust may be had simply by filing an estate tax return and electing the Deceased Spousal Unused Exemption Amount (DSUEA). The election is permitted whether the decedent had an estate plan in place or not.

With the elimination of tax savings as an estate planning goal, the benefit that has been most important all along comes to the front: disposing of property in an orderly way, according to one’s wishes. Failure to have an estate plan means that the state’s intestacy statute takes over. Intestacy rules are the government’s best guess of what someone would have chosen had they taken the time to plan. Even so, settling an estate via intestacy can be costly and time consuming.

Will Registration

When someone appears to have died without a will, there are questions, especially if substantial assets are involved. Was a will executed, but then lost? Where should one look for a will? If someone has executed a will, how can he or she be confident that the heirs will find the will?

Stacey Jerome-Miller is the President of The US Will Registry. That organization provides a secure and comprehensive database for the locations of wills that have been registered with it. There is no charge for the service. Ms. Jerome-Miller lays out the details of the operations of her organization in “Where’s There’s a Will, There’s a Way,” 32 Probate & Property No. 4 (July/August 2018).

The registry does not hold any of the estate planning documents, only the information on the draftsman and the document location. It provides an avenue of inquiry when there is a question about whether someone really died intestate.