The short answer is “most likely.” Even if your children believe they can carry out your estate plan independently, they may want to think twice about doing so. It’s difficult to lose a parent, and the emotional toll can be draining. While processing grief, the added stresses of executing your will and administering your trust could be overwhelming, especially considering the deadlines, details, and complexity of distributing assets. To lighten your children’s burden and ensure that everything is done correctly, it’s usually prudent to have an attorney assist in the process.
Here are a few items to consider when evaluating your estate plan and how your actions today could impact your children.
Tell Your Children the Location of Your Will and Estate Planning Documents
This may seem incredibly obvious. However, people often forget to inform their children about this basic but crucial information. If your children cannot locate your will, it can have severe consequences.
If the will was last in the decedent’s possession, the decedent was competent until death, and the will cannot be found after the decedent’s death, California law presumes that the decedent destroyed the will with the intent to revoke it. [i] If your children can’t find your will, they may not be able to distribute your assets without court intervention, i.e., probate. An inability to locate the will may be treated as if you died without one (intestate). If a probate proceeding is necessary, it is more likely that your children will need attorney assistance to navigate the process.
Communicate Your Intentions to Your Children
We realize discussing the specifics of your estate plan with your children can be a sensitive topic. However, an open line of communication can go a long way. You don’t have to tell your children all the details regarding your final wishes, but if you provide them with at least a high-level summary of how you intend to distribute your assets, it will allow them to wrap their heads around what might be required upon your death. A couple of scenarios could include: “I’m giving $100,000 to charity, and you and your brother will split the rest” or “you and your siblings will split everything evenly.”
When your children know your intentions, they can ask questions, resolve concerns, and mentally prepare for handling your estate. Open communication can also prevent potential will contests (formal objections to your will). The more information your children have, the more empowered they will be when it comes time to distribute assets.
In executing your will, your children will be responsible for carrying out your wishes and ensuring that your legacy lives on, whether through charitable donations or financial stability for your children and grandchildren. If your children understand your values and why you’ve made certain decisions, it’ll make it easier for them to execute your will, both psychologically and practically.
Title Your Assets Appropriately to Minimize the Possibility of Probate
There is no sure-fire way to guarantee that your will can avoid probate. If probate does become necessary, your children should be prepared for a lengthy process that could take anywhere from 9 months to 1.5 years. [ii]
Whether or not your children will need to initiate a probate proceeding is heavily dependent on how your assets are titled. To minimize the possibility of probate, you should work with an estate planning attorney to develop a comprehensive estate plan. Reviewing your assets and how they’re titled is one of the best ways to alleviate stress on your children and simplify the distribution of assets.
Below are a few titling examples that generally (not always) avoid probate:
Assets owned by a trust
Assets held in joint tenancy with right of survivorship (assuming someone on the title survives you)
Life insurance policies with a named beneficiary
Retirement accounts with a named beneficiary
Assets with “Pay on Death” or “Transfer on Death” beneficiaries
In handling your estate, your children must meet specific deadlines. Depending on the organizational skills and “free time” available to your child, addressing everything in a timely fashion could prove challenging without outside assistance. Below is a small sampling (not an exhaustive list) of some of the actions which are time sensitive:
Initiate probate proceedings (if necessary) - if not initiated/filed within 30 days of learning of the death, your child could forfeit the right to be appointed as the executor [iii]
Whether or not your children will need help executing your will is going to be entirely up to them. Hopefully, if you’ve had meaningful conversations with them regarding your wishes and created a comprehensive estate plan, it’ll make the process as straightforward as possible. As you contemplate your estate plan and where you stand, let us assist you in reviewing your documents and helping maximize your children’s ability to carry out your wishes.
Disclosures: This information should not be construed as investment, tax, or legal advice.