March 27, 2024
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Why a One-Size-Fits-All Will Fits Almost Nobody

Many people know that they should have a will—among many other reasons, it’s the best way to ensure that your assets are distributed as you wish, and it allows you to designate guardians who will care for minor children. Despite these important considerations, many balk at the cost of hiring an attorney to draft a will. This inevitably leads to the question posed to me many times: “Why can’t I just get a will off the internet?”

A will is much more than a compilation of standard legal jargon; it is not a one-size-fits-all document into which one can simply insert any name. When you pay an attorney to draft a will for you, you are paying him or her to look at your personal financial situation in the context of the state and federal laws and structure a will that minimizes (or, one can even hope, eliminates!) the estate taxes that will be owed by your heirs. But, it goes beyond taxes as well. You hire an estate-planning attorney to ask the questions you didn’t know needed to be asked, take into account aspects of your life you didn’t realize could be addressed in a will, and ultimately create a will that is tailored to your needs

As the law currently stands, the first $5.43 million of an individual’s estate will not be subject to federal estate taxes, but New Jersey estate tax law exempts only the first $675,000 of an individual’s estate. Before even discussing the specifics of a will, an estate-planning attorney can help mitigate the New Jersey estate tax exposure by advising you how to re-distribute assets between the two spouses. The next step would be to draft a will that accounts for the lower state threshold, while simultaneously incorporating your preferences and needs.

For instance, can everything above the exemption amount go to the spouse outright? Or perhaps the money should be placed in trust for a spouse who is not accustomed to handling money, or to give a level of comfort to an individual in a second marriage who wants to ensure that the money stays in his children’s bloodline rather than passing disproportionately to step-children (or elsewhere if the spouse remarries)? Maybe the surviving spouse is unlikely to need the money at all and a separate trust benefiting descendants can be created? A will containing these kinds of provisions can save tens or hundreds of thousands of dollars for your heirs.

It is the job of estate-planning attorneys to familiarize themselves with your personal situation so they can ask the pertinent questions and address them in your will. Do you want your assets to pass to your children outright, or in trust? If in trust, until what age and subject to what restrictions? Here, a lawyer will balance tax implications for your heirs with your own feelings about how and when you would like them to receive their inheritance. Do you have family members who might need to receive their inheritance in a special needs trust so as not to lose current or future government benefits? Perhaps you have children or grandchildren living in Israel, for whom special provisions should be drafted so as not to trigger extra income taxes in Israel

So, when you decide it’s time to start thinking about writing a will or to revisit an old estate plan, I urge you to seek out the help of an attorney who specializes in estate planning. A form from the internet will help you dispose of your assets for a lower price tag today, but at what financial and familial cost? A will should be a very personal document that incorporates your needs, your concerns, your family’s situation, your financial particulars—you should speak with a lawyer who can account for all of these considerations and ensure that the document you sign is uniquely yours.

Sara Weinberg earned her B.A. from Columbia College and her J.D. from Columbia Law School. As an attorney in the Tax & Wealth Planning Group at Fox Rothschild, LLP, she represents clients in a wide range of matters relating to federal and state gift, estate and income tax planning, and recently published a series of articles on the new Israeli income tax law and its effect on U.S. trusts with Israeli resident beneficiaries. Sara currently lives in Teaneck with her husband and three children.

By Sara Weinberg

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