Things You Need to Know About Your Will and Related Documents
Where Shall I Keep My Will?
You should keep the original of your Will in a secure, but accessible place. I normally recommend that you keep your Will in a safe deposit box where you do your banking. If your Will leaves property in a way that is significantly different from the way that it would pass if you die without a Will, then a secure location is extremely important. If you name a trust company or the trust department of a bank as your Personal Representative (Executor) or your Trustee, you could let them keep the original of your Will in their Will vault. I also suggest that you keep copies of your Will at home for reference and annual review.
Certain Courts will allow you to deposit your Will with the Court while you are alive. The King County Superior Court Clerk’s Office allows you to deposit your Will at the Court. You take the original will to the clerk’s office with a completed Will Repository Cover Sheet and $20. The clerk will accept, seal and store the will securely. No one can see it while you are still alive, unless they have a court order.
Leaving a will in the Will Repository does not make it a legal will or valid. To learn if your will is valid, talk to a lawyer. You are not required to leave your will in the Will Repository.
Your Will may contain a provision which allows you to leave a Separate List which directs how you want certain specific items of your tangible personal and household effects to be divided among your beneficiaries at your death. I recommend that you also keep such written instructions in a safe deposit box where you do your banking.
Whom Should I Tell Where The Original Of My Will Is Located?
You should tell your Personal Representative where the original of such document is kept. You may want to tell some other trusted relative (or relatives) and/or friends as well. You should also advise your attorney where you have placed your original Will.
Who Should Have Copies of My Will
It is not necessary for anyone other than you and my office to have copies of your Will. I keep electronic (scanned) copies of this and any other documents that I have prepared for you on our office system. I will not provide copies to anyone other than you unless you authorize me, in writing, to do so. If you wish, I will be glad to make copies for anyone that you desire to have copies, but keep in mind that if you change any of these documents, you may not want to have copies of the prior documents in existence. Copies of prior documents should be destroyed.
When Should I Review My Estate Plan
I suggest that you review your estate plan every time there is a significant change in your life, family or financial situation. At a minimum, you should review your estate plan documents every two years, to ensure that it stays consistent with your situation as well as your wishes. It is advisable that you also review your Separate List (if any), referred to in your Will, directing the gifting of your personal and household effects at your death.
What Are Some Situations That Would Cause Me To Review My Estate Plan?
- Death of a beneficiary of your estate.
- Any change in your marital status.
- Birth or adoption of a child or grandchild.
- Death, significant change in the health status (such as an incapacity) or a change of your Personal Representative (or the Successor Personal Representative), Trustee (or the Successor Trustee), or the Successor Attorney-in-fact for your Powers of Attorney.
- If you change your name, or anyone mentioned in your estate plan changes his or her name.
- If you change your mind about the plan of distribution for your assets.
- If there is a significant change in the nature or the value of your existing assets.
- If there is a significant change in the health status (such as an incapacity) of yourself or a beneficiary of your estate.
- If you move to another state.
- When you retire.
- If you buy, inherit, or receive as a gift any asset or assets of significant value.
- Finally, if at any time you feel uneasy about your estate plan, you should make changes so that you will feel comfortable with your plan.
How Do I Change My Estate Plan?
Do not write on or make any markings on the original of your Will or other estate planning documents. Changing your Will is done by an amendment known as a Codicil or having a new Will prepared that will revoke your old Will. I recommend that you contact me if you want to make any changes to your Will so that you can then be certain that all changes have been legally made.
On the other hand, your Separate List (if any) directing the gifting of your tangible personal and household effects at your death can be changed by you at any time without having to change the Will itself. The best way to accomplish this is to destroy the current letter and write or type a new one. This Separate List should be dated and contain your signature.
How Do I revoke My Will
The best way to revoke a Will is to tear up the original. Normally you should not revoke your Will unless you are having a new one prepared with the intent to replace the prior Will.
If you revoke your Will and die without one, your property will be distributed according to state law and that may not be the way you want it to be distributed.
What About Funeral Arrangements and Related Matters
Arrangements for funerals, disposition of remains, and burial instructions are important issues for many people. Instructions as to your funeral, disposition of your remains, and burial may be contained in a separate document that expresses your wishes regarding the place or method of disposition of your remains, signed by you in the presence of a witness, so as to provide sufficient legal authorization for the procedures you want accomplished. Such a document will not only protect your wishes, but also protect your family from the stress, misunderstandings and potential conflicts often created by a lack of clear directions. Placing such instructions in a Will is not recommended since one’s Will is typically not read until many days following death.
Washington law further provides that prearrangements by you with a licensed funeral/cemetery establishment (either prepaid or filed with the establishment) are not subject to being canceled or substantially revised by your survivors.
In the absence of written directions by you, Washington law creates a hierarchy of persons who are authorized to make those decisions (and the duty to do so and pay for the cost) as follows: your surviving spouse, surviving adult children, your surviving parents, and lastly, the person acting as your representative.
Are There Some Future Situations That I Should Be Concerned About?
It is possible to accidentally jeopardize the effectiveness of the estate plan you have established. I have listed below some of the more common events that can create problems in the future.
1. Joint Bank Accounts and Other Types of Accounts Providing “Right of Survivorship.” Jointly owned accounts that include a “Right of Survivorship” feature are considered “Will Substitutes” since through the provisions of the account, when one of the account owners dies, ownership of the account passes to the surviving owner, notwithstanding any contradictory provision of the deceased account owner’s Will. This could be a very undesirable (and expensive) result for your estate since your estate plan was designed to have the proceeds of your bank account(s) and other financial accounts pass at your death to your surviving spouse with the option for your spouse to have these assets go into a trust (designed to provide benefits to your surviving spouse) which will significantly reduce or possibly eliminate estate taxes at your surviving spouse’s death.
2. Commingling of Assets. If in addition to community property (generally, property acquired during the marriage) either or both spouses have separate property (property that a spouse now owns that was acquired before the marriage or acquired during the marriage as either a gift or an inheritance), you should be aware that separate property can be inadvertently converted into community property merely by being commingled with community property, as for example, by putting separate funds into a bank account or an investment account which is under both of your names.
3. Retirement Plans and Life Insurance.
a. Distribution of Retirement Plan Benefits. The type of payout that you select for payment to you of your retirement benefits (from an employer sponsored plan or an IRA) can have significant income tax and estate tax consequences and should be discussed with your tax advisor before you make an irrevocable election.
b. Beneficiary Designations. If you obtain any life insurance coverage that permits you to designate the beneficiary or beneficiaries of the proceeds to be paid at your death, or if you make any beneficiary changes in any policies you currently own, it is extremely important to be sure that the beneficiary designations of those policies are consistent with your general estate plan. This is also applicable to beneficiary designations in any retirement plans (employer sponsored retirement plans and IRAs, for example) in which you participate.
c. Changing Ownership of Life Insurance Policies. Changing the ownership of a life insurance policy (as contrasted with changing the beneficiary designation) requires additional and thorough documentation beyond just the change of ownership form that is provided by the insurance company. Also, cautious attention to whose funds will be used to pay future premiums and attentiveness as to the nature (community property or separate property) of those funds is critical.
4. Community Property Agreements. These Agreements offer the opportunity to avoid probate and estate administration proceedings following the death of a married individual. For some people, this has great appeal. With some estate plans it is not recommended that you sign such an Agreement since they operate like a joint account with right of survivorship and therefore would undermine the provisions included in your Will for reducing or eliminating unnecessary estate taxes. Please consult with an attorney prior to signing a community property agreement.
Should I Tell My Personal Representative (Executor) Who My Estate Planning Attorney Is?
Yes, upon your death, your Personal Representative should know who your estate planning attorney is and where to locate your original Will and other estate planning documents or copies of them.