To begin, I will explain a legal process called probate. Probate is where the court ascertains the validity of your will and distributes your property per your instructions; or, 如果没有遗嘱, 决定如何处理你的财产.
为简单起见, 你死的时候, everything you own is separated into probate property (things that need to go through probate) and non-probate property (things that do not need to go through probate). This dictates how the property is distributed to your spouse, 孩子们, 父母, 远方的亲戚, 以及其他你认为值得的人.
This is distributed by what your will says or by what the court determines if you have no will:
- 土地(如果题为 仅仅 以你的名义-以后会有更多)
- Personal effects, like your clothes and jewelry
- Taxable investment accounts which do not have provisions for asset transfer upon death
As you can see, having a will is important. It is considered the most important estate document. It names the person (called the executor or personal representative) who is responsible for settling and distributing your estate. It also names a legal guardian, who would care for your 孩子们 if they are under the age of 18. 如果你没有遗嘱, the court will appoint these two positions, likely choosing someone you would not have selected. Let me reiterate – if you do not have a will, the court, 不是你, will choose who will raise your 孩子们.
This is distributed by how the asset is titled, what the contract says (think life insurance), or the terms of the trust you may have set up. These assets pass directly to the individual noted and do not pass by the terms of your will or through probate:
- Property owned by Joint Tenants With Rights of Survivorship (JTWROS) or Tenancy by the Entirety – this can be a home, 土地, 或应税投资帐户
- 退休计划, 个人退休帐户(ira), or Life Insurance – this passes based on who the beneficiary is on file
- Assets owned by a trust, revocable or irrevocable
Note one important item with regard to non-probate property. The beneficiary that you have listed for your IRA or 401(k) receives the money at your death. This trumps whatever is listed in your will. I’ve heard many horror stories about people failing to change their beneficiaries after a divorce. The 1st spouse is listed as the beneficiary on the IRA when their former spouse dies. The new spouse doesn’t get the money in that account, the first spouse does.
Durable Power of Attorney and Advance Directives
There are two other documents that every person should have: Durable Power of Attorney and Advance Directives. These appoint someone to act on your behalf with regards to all financial matters and healthcare-related matters, 分别. A future post will expand on the importance of having all three documents in place.
Remember, estate planning isn’t only for the wealthy. 这对任何人都很重要, especially those who recently experienced a life event: new child, 婚姻状况的改变, 或者家人去世了. 未雨绸缪. Make a wise investment by acting to have these documents in place!
Thank you for reading, and please reach out with any questions!