In law school one of my professors told my class there are three basic rules underpinning all estate planning:
- Everybody dies.
- When you die, other people get your stuff.
- Without a will or other estate plan, the law says who gets your stuff.
I don’t think anything in the law has ever been explained to me more simply. And, while I love recounting these rules to potential estate planning clients as a way of lightening what can be a difficult conversation for some to have, I generally presume that most people already understand that one purpose (certainly the primary purpose) of a will is to direct your assets to the people and charitable organizations you want to benefit from your life’s labors.
What I believe to be less understood are the things a will can do that have nothing to do with dividing up your estate. Here are four of the best non-asset reasons to make a will.
Nominating Your Post-Death Representative
Some states (and seemingly thousands of movies and television shows) say ‘executor.’ In Oregon, we use the term ‘personal representative.’ Regardless of the term used, somebody has to act for you and your estate after you are gone. In your will you can nominate who you would like this person to be and that nomination is powerful. For example, the person you nominate in your will to be your personal representative has the legal authority to demand your original will from whomever might be in possession of it (ORS 112.810(1)(f)). Your nominee can petition the court to open a probate case even if they are not one of your heirs or family at all or even if you do not leave a gift to them in your will (ORS 113.035). And, assuming they are not legally disqualified (under ORS 113.095) your nomination gives them statutory priority to serve in that role over any other person who might try to control your estate after you die (ORS 113.085(1)(a)).
This is a vital role and this person needs to be someone you trust and who can follow the direction and advice of an attorney. Give this nomination a lot of consideration. Nominate backups in case the person you nominate can’t or won’t do the job when the time comes. Do not simply name your oldest child because they expect it. Definitely do not automatically nominate both your children as co-personal representatives just because you don’t want to be seen as playing favorites. Few things cause more problems in probate than co-personal representatives, especially when there are family grudges, rivalries, and resentments at play.
Nominating a Legal Guardian for Your Minor Children
Remember rule #1 above. Everybody dies. Unfortunately, many people die too soon, leaving behind young families. If you have minor children and are the second parent to die or if you and your spouse tragically die together, someone must become the legal guardian of your kids and the court will decide who that will be. What parent wouldn’t want to have a say in such an important decision? With a will, you can share with the court who you think the best person for that role is and the court is obligated to consider your choice.
Remember, though, the court’s job is to do what the judge believes is in the best interest of your children. The judge will not simply rubber stamp your nominee and you wouldn’t want them to. Imagine nominating your younger sister, with whom you grew up together as best friends. Suppose that following your death she is so devastated that she spirals into a deepening depression and alcohol abuse. At that point, is it in your children’s best interest that she be their legal guardian? Probably not. Still, the court will consider your nomination.
Providing for Pets
As recently as 40 years or so ago, it was not an uncommon practice to include in your will instructions requiring that your beloved Fido or Fluffy be euthanized and buried or cremated with you. In fact, attorneys still see these requests. In today’s society, however, we recognize the sanctity of the lives of our furry companions in their own (albeit limited) right. Most attorneys would not prepare a will including such an instruction. Even fewer veterinarians would perform a euthanasia without a legitimate medical justification and doing so likely puts their license and livelihood in jeopardy.
There are many ways to ensure your pets’ health and happiness after you die, whether simply willing the pet to a trusted friend along with a small amount of money to help pay for care, or taking advantage of a program like the Oregon Humane Society’s Friends Forever Program, or even establishing a million-dollar pet trust.
Managing Your Digital Legacy
In 2016, Oregon passed its version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), to bring clarity to issues related to online accounts, profiles, and other digital assets of deceased persons, persons living under guardianship, and other people represented by legal fiduciaries. I wrote about this last year and if you’re interested in more on the topic you can read that post here. The gist, though, is that with a will you can control who has access to your digital assets and give guidance as to what you would like done with them. This is particularly important when the digital assets have little to no financial value but are full of sentimental importance to you, your friends or family, like photos and videos stored in the cloud.
So, if you’ve been thinking about making a will but assumed that your estate was too small to worry about it, give these non-asset benefits some thought.
For informational purposes only and not to be relied upon as legal advice or for the formation of an attorney-client relationship.
- Brook D. Wood