Estate Planning Mistake #2 – The “I Love You, Honey” Will

Slutzky Law Firm Blog

April 10, 2015

Estate Planning Mistake #2 The “I Love You, Honey” Will

This continues my series of discussions about “The Most Common Estate Planning Mistakes.” Please refer to my previous blog entries for other common estate planning mistakes

I have found that, in most cases, a husband and wife simply want to leave everything to each other, and then to the kids. What says, “I love you,” better than leaving everything you own to the one you love. What could be easier, right? On paper, it might seem to be a caring, thoughtful gesture, but the reality can quite different.

That’s because this type of Will simply passes the complex issues and problems associated with transferring and protecting wealth onto the spouse or other loved ones.

As an example, suppose Husband #1 dies, leaving everything outright to Wife, Wife gets remarried and then dies. Husband #2 may inherit everything, and the children may get nothing! When Husband #2 dies, his children inherit everything; the children of the Husband #1 receive nothing!

Or suppose both Husband and Wife die while the children are still minors. A guardianship will need to be established for each child who is under 18 years of age, which is supervised by the Court and can be expensive to administer. When each child turns 18, the child receives the money.

Perhaps your children are different, but in my experience, I haven’t come across many children who, at 18 years of age, are capable of maturely handling an inheritance of a sizeable amount of money. I can visualize a fancy sports car in their immediate future, not to mention a lot of partying, and poor choices for the use of the money. Delaying access to the money to an age of greater financial maturity, while still making the funds immediately available for their health, education, and general welfare is preferable, in my opinion. A simple Will leaving everything to one’s spouse and then to one’s children, especially when the children are minors, is often a poor choice.

Please do not misunderstand me. Having a Will, including an “I Love You, Honey” Will is certainly better than having no Will at all.

Preparation of a Will is a great start to your estate planning process: Your Will enables you to specify whom you want to serve as your personal representative, the person who is charged with the task of collecting your assets, paying your bills, and distributing your estate to whomever you want. You, not the state, chooses who that person will be.

You are also able to name whom you want to serve as Guardians for your minor children, and can even create a testamentary trust inside the Will to control your assets for their benefit, after your death.

But as I discussed in my last blog, a Will does not avoid probate! Let me repeat that, as this is often misunderstood:  A Will does not avoid probate!!!

While the probate process can be beneficial in certain circumstances, often it is needlessly time consuming, frustrating and expensive.

For example, probate gives the supervision of your estate and the distribution of your assets to the Probate Court.

In addition, your probate file may be open to the public, meaning creditors, predators or anyone else may be able to access information about your estate.

Personally, I prefer saying, “I love you, Honey,” with flowers, spinning my wife around the dance floor, and kind words and thoughtful actions… and when my life journey is done, with estate planning documents that have been designed to protect my loved ones, protect their assets, and that will help make their lives as easy and inexpensive as possible when I’m gone.

I will discuss these estate planning documents, additional common estate planning mistakes, and several methods of avoiding probate in future blogs.

Previous blogs regarding estate planning mistakes:

Mistake Number 1 – Dying Intestate.

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Jerrold E. Slutzky, J.D., CFP® is a Florida-licensed attorney at law with offices in Safety Harbor, Florida and Land O’ Lakes, Florida, serving Pasco, Pinellas, and Hillsborough Counties.   His practice focuses primarily on Estate Planning Services (wills, trusts, powers of attorney, health care directives, living wills, asset protection, etc.), Probate, and Business Law Services to small business owners (buy/sell agreements, start-ups, choice & formation of business entity, business succession planning, drafting/negotiating/review of documents, confidentiality agreements, corporations, LLCs, partnerships, etc.) and General Legal Counsel & Advice.

Jerry has two locations: 853 Main Street, Suite A, Safety Harbor, Florida 34695 (Pinellas County) and 20719 Sterlington Drive, Suite 103, Land O’ Lakes, FL 34638 (Pasco County). You can call him at (813) 909-1515, or email him at JSlutzky@SlutzkyLawFirm.com.  His website is www.SlutzkyLawFirm.com.

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