When I am discussing the possible preparation of a Will, I ask a series of questions that follow a general framework. This tends to bring all the issues to the surface in a logical way. I respect that people often want to just “tell me what they want the Will to say”, and that very often they have put serious thought into it. I usually then ask if they would be OK if I asked questions in my preferred order, as it tends to bring out EVERYTHING, including the things I am sure they want to tell me. Most people are fine with this.
I call my approach the WHO, the WHAT, and the HOW.
WHO – I start with a pretty detailed family tree. I don’t go back to the Mayflower…what I am looking for is establishing who are the “distributees”, that is to say “who would inherit if this person died without a Will?”. As mentioned in earlier posts, this is very important because even if those people are not in the Will you have to get jurisdiction over them during probate. All my will files start with a little family tree diagram. I get the names, the relationships, the ages, and make note of anything pertinent the client tells me. Of particular interest are people in the tree who are minors, or disabled, or missing, or elderly. I make note of pertinent details about them. During this part of the interview I usually have a sense of what is going on and who is “involved” and who isn’t. Since the people on the tree are likely to be discussed as the interview proceeds, I can now refer to them all by name and with some clarity as to who they are. When I have enough family information, I draw a line on my notepad and say….”This concludes the WHO portion of the program, let’s move on the the WHAT”.
WHAT – In this section I make clear that while I don’t need to know every account and asset down to the penny, I do need to know WHAT we are talking about. I specifically want to be clear about what assets the Will will affect and what assets it won’t. For example, Wills don’t generally change things like life insurance beneficiaries, or bank accounts with beneficiaries. This must be looked at carefully because, and I actually say this to clients “I once did an Estate where the drafting attorney did not ask about these things, and there was a horrific result”. In that case a man did a Will and left everything to his sister, who was his closest relative. However, his biggest asset was a retirement account where he had named a beneficiary, a girlfriend from 20 years ago where there was a bad break-up…Orders of Protection, death threats, etc. Guess what? – the ex inherited $400K, and there is no doubt that if the drafting attorney had asked, the client would have been told to change the beneficiary. He surely thought a Will leaving “everything to my sister” would do the job. It didn’t. So now, I always ask
I also ask about things like title to real estate, and if it’s within NYC I check it on ACRIS (the City’s e-recording system). Many times we find surprising things and address them.
I basically inquire about the title to any meaningful assets and make notes about it.
And then at some point I say “Now we are done with the WHAT, lets move on to the HOW, as in HOW DO YOU WANT THINGS TO TURN OUT”
HOW – At this point I ask the clients how they want things to go, what is their idea about who should get what? It is a good idea for people to have thought about this before we speak, and most have. An interesting question is often whether to do things in terms of dollars or in terms of percentages. Generally the smaller bequests (if any) should be in dollars, and the broader ones (often called the “residuary bequests”) should be in percentages. At this point I ask questions that many people have not thought of, which is a series of “what if” questions. Things should not be left to chance, so we then get into the sometimes uncomfortable “what ifs”. What would happen if “so and so” dies before you, which is something we ought to provide for. I don’t take this to ridiculous extremes, but I do go pretty far into it. Strange things happen, and as long as we are doing a Will, I do not leave these things to chance, especially if someone has a strong opinion, like “if x dies before me, I do not want y to get his share”. I make sure this is covered.
Also very important in the HOW section is naming Executors and if applicable, Trustees. The Executor is the person who takes care of the Estate after a person dies. They get the Will probated, marshal the assets, pay expenses and taxes, and make sure the Wills terms are carried out, Naming an Executor is a VERY important decision. Co-Executors are permitted and sometimes appropriate. Naming a successor Executor (another what-if) is also important. Trustees come into play if the Will is establishing aTrust, which would usually apply for a minor or a disabled beneficiary.
Obviously, the above is just a framework. If the discussion leads to more details about particular issues, of course we explore them.
Funny thing though, when I follow my outline and we reach the end and I ask “Is there anything else?” most of the time the answer is “Nah, we covered it, what happens next as far as preparing and signing the Will?
And so it goes.
Next post – “Living Wills & Health Care Proxies”