Estate Planning & Elder Law Blog

DEAR JONATHAN: My husband passed away six months ago. We didn’t have much but everything we had we held in joint names. Consequently, upon the advice of a family member, we never bothered to prepare wills because we were told that the survivor of the two of us would own everything, so there was no need to have a will. Now that my husband is gone, do you recommend that I now have a will?

JONATHAN: I am very sorry for your loss.

Following your family member’s advice, while technically correct, could have been disastrous for you and your husband if you had both died in a common accident or if you had passed away before any planning was completed.

I am glad that you are now being proactive in asking whether you should prepare a will. To answer your question—the short answer is yes. You should now have a will and you should also consider preparing several other estate planning documents.

A last will and testament allows you to control who will receive your assets at your death. Without a will, your estate will be distributed according to state law, which may not reflect your wishes. Preparing a will ensures that you—not the state—decides who inherits your assets.

Keep in mind that there are certain assets that a will does not control, such as retirement accounts, life insurance policies, and bank or investment accounts with designated beneficiaries. These assets pass outside of your will directly to the designated beneficiaries.

In contrast, assets titled solely in your name without a beneficiary designation—such as a home, bank account, or investment account—are governed by the terms of your will and administered through the probate process. These are the assets that are subject to probate at your death.

In addition to a will, you should also have a financial durable power of attorney and a health care durable power of attorney. These documents allow you to appoint someone you trust to make financial and medical decisions on your behalf if you become unable to do so. Without them, your loved ones would have to go through the probate court to be appointed as your guardian or conservator—a process that can be time-consuming, expensive, and stressful, and which can be avoided by preparing these documents in advance.

In conjunction with your health care power of attorney, you can also prepare (i) a living will, which provides guidance regarding the type of medical treatment you want to receive in end-of-life situations, and (ii) a HIPAA authorization allowing designated individuals to access your medical information.

Finally, if avoiding probate is a goal, you should consider whether a revocable living trust is appropriate. As noted above, assets that are titled solely in your name and do not have a designated beneficiary are typically subject to probate and would otherwise pass under your will through the probate court process. By creating a revocable living trust and either (i) transferring those assets to the trust during your lifetime, or (ii) naming the trust as the beneficiary of those assets upon your death, those assets can instead pass outside of probate, often resulting in a more efficient and private administration of your estate. Whether a trust is appropriate depends on your specific circumstances and goals.

I encourage you to meet with an estate planning attorney to further discuss the benefits of engaging in estate planning. Wishing you the best of luck in your endeavors.

Jonathan J. David is a shareholder with Foster Swift Collins & Smith, PC and has extensive experience preparing a wide variety of lifetime and estate planning documents such as wills, trusts, durable powers of attorney for both financial and health care matters and living wills. Jonathan practices in the firm's Grand Rapids office:

Office - 1700 East Beltline, N.E., Suite 200 Grand Rapids, MI 49525
Phone - 616.726.2243
Email - jdavid@fosterswift.com 

THE INFORMATION CONTAINED IN THIS ARTICLE IS NOT TO BE CONSTRUED AS LEGAL OR TAX ADVICE OR LEGAL OR TAX REPRESENTATION AND SHOULD NOT BE RELIED UPON AS SUCH. FURTHER, THE INFORMATION PROVIDED IS NOT STATE SPECIFIC AND CERTAIN LAWS AND CUSTOMARY PRACTICES WILL VARY FROM STATE TO STATE. IF LEGAL OR TAX ADVICE OR LEGAL OR TAX REPRESENTATION IS DESIRED, PLEASE CONSULT WITH AN ATTORNEY.