TIME Retirement

The Last Will and Testament of a Millennial

Portrait of woman writing letter at desk
Portrait of woman writing letter at desk, circa 1950 George Marks—Getty Images

It started with leaving my boyfriend my share of the rent — then things got complicated

I’m going to die, I reminded my boyfriend. My eventual death was something I’d been mentioning to lots of people, on Facebook and at engagement parties and at my high-school reunion.

It wasn’t that I thought death was going to come any time soon or in any special way, it’s just that, as they say on Game of Thrones, all men must die. So I was writing a will. I’d downloaded a template. I’d filled it out. I just hadn’t signed it yet, and in the mean time it had become my favorite topic of conversation: I’m going to die, we’re all going to die, I’m filling out paperwork about it, what’s new with you?

I asked my boyfriend: Is there anything else you want me to leave you? Besides my share of the rent. Besides the fish tank and the fish. Besides the coffee table, the pots and pans, the things that I call ours that are legally mine.

He said: Yes, but don’t tell me what it is. Make it something special.

That was a good answer, which wasn’t surprising. He takes deep questions seriously, and we’re well past the point where you have to act like it’s awkward to imply that your relationship will exist more than a few years in the future. So of course he had a good answer — but it was also a difficult one. What object that I owned could possibly say what I needed it to? There was, it must be said, not too much to choose from.

That’s a big part of the reason why young unmarried people with no children — that’s me: 28, legally unattached, childless — don’t usually bother with a will. Unlike a medical directive, which everyone should have, wills are something we can do without. The law of intestacy, the statutes that cover what happens when you die without said last testament, should take care of you just fine unless you’re very wealthy, whereas I fall into the It’s A Wonderful Life category: worth more dead than alive. I’m living comfortably, but my life-insurance policy is my most valuable asset.

Plus, most young people don’t need a will for an even more basic reason. Most of them don’t die.

However, even if death is a constant, life has changed. Last year, the U.S. Department of Health and Human Services released a report finding that nearly half of American women 15–44 cohabitated with a partner prior to marriage, using data from 2006–2010. That was a major increase from past studies, and by now the numbers may well be even higher. A cohabitating partner is entitled to nothing when the other dies. Marriage and children are also coming later in life, which means that people are acquiring more wealth before the laws regarding spousal inheritance kick in and before they have to choose a guardian for their child. So for people like me, without a will, there’s no way to say give this thing to my friend, give this thing to my brother, donate this thing to charity.

Hence, my will obsession. If all goes according to plan, it will be the umbrella that keeps the rain from falling, rendered obsolete within a few years. Marriage and children and my inevitable Powerball victory will change my priorities, and I’ll have to write a new one. But, as anyone who’s ever thought about a will must have realized, not everything goes according to plan.

***

Given changing social norms, estate planning ought to be a mainstay for millennial trend-watchers, except that there’s no way to know how many of us are actually out there thinking about the topic. There’s no way to know how many wills there are, period. Lawrence Friedman, a professor at Stanford Law and the author of Dead Hands: A Social History of Wills, Trusts and Inheritance Law estimates that — though there’s no way to track them — wills may be getting more common as popular awareness increases. A century ago, even counting the super-wealthy, he thinks probably half of the population gave it a thought. But, he says, the role of wills is also changing, as people live longer and are more likely to give their children money while everyone is still alive.

What’s not changing is that wills are fascinating to think about. Whether it’s the buzzy economist Thomas Piketty discussing the way inherited wealth affects society or a historian analyzing Shakespeare’s bequeathing his “second-best bed” to his wife, people who look at wills see more than what the dead person wants to do with his stuff. “I used to say to my class that what DNA is to the body this branch of law is to the social structure,” Friedman puts it.

Though it may seem obvious today that each adult has the right to leave his property to whomever he chooses, that privilege isn’t necessarily a foregone conclusion. Historically, there have been two competing theories behind inheritance law. One side holds that having a will is an inalienable right; the 17th century scholar Hugo Grotius wrote that, even though wills can be defined by law, they’re actually part of “the law of nature” that gives humans the ability to own things. John Locke agreed: if we believe property can be owned, it follows that we must believe that ownership includes the right to pass that property to whomever the owner chooses.

On the other hand, there’s just as long a tradition of the idea that wills are a right established by government and not by nature, because, not to put too fine a point on it, you can’t take it with you. If ownership ends at death, the state should get to decide how inheritance works, for example by saying that all property must always go to the eldest son, or by allowing children written out of a will to appeal to the state. Perhaps due to colonial American distaste for the trappings of aristocracy, the U.S. ended up with the former system — and Daniel Rubin, an estates lawyer and vice president of the Estate Planning Council of New York City, says it’s a right worth exercising. “For most young people, it’s not going to be relevant. But it’s a safeguard. People should appreciate the opportunity to do what they want with their stuff,” he says. “We’ve got a concept in the United States of free disposition of your wealth. You can choose to do with it whatever you want.”

Most wills written by young people won’t be read — except maybe by our future selves, nostalgic for the time when a $20 ukulele was a prized possession — and the ones that will be seen will be sad. If I die tomorrow, that will be what’s known as an unnatural order of death, the child going before the parents. Inheritance is not meant to flow upward. On that, tax law and the heart agree. It’s one area where millennials’ will-writing and older generations’ diverge: usually, estate law is a happier field than one might expect, something I’ve been trying to keep in mind. Rubin says he cannot imagine practicing any other area of law and finding it so rewarding.

“It’s never sad. Sometimes people are reluctant to deal with these issues. Perhaps they feel it brings bad luck although they rarely express it that way. It’s probably that they just don’t see the need to do it because they don’t think they’re going to die soon,” he says. “It’s almost uniform that even the most reluctant clients will sign their wills and then leave my office and feel great.”

***

Of course, it’s not as if “what if I die” is a rare thought, even for people under 30. Tom Sawyer took it to extremes; Freud thought we’re all itching to find out. People will be sad, we hope. Maybe we care about funeral arrangements, like the tragic Love, Actually character whose pallbearers march to the sound of the Bay City Rollers. Maybe we think we know what comes next; maybe we think nothing does. Maybe we’ve thought about who gets the heirlooms, the things that always carry a whiff of death about them.

What happens to the ordinary stuff that fills our homes is less likely to cross our minds. And lot of what we have, or at least what I have, is just crap on some level, mostly. That used starter-level Ikea, left behind by an old roommate who moved to California, isn’t exactly something I’d pass down. My most valuable possessions are mostly Bat Mitzvah gift jewelry. And my favorite possessions aren’t necessarily valuable. And if I did give these things away, how would they be received?

Once, I got a gift from a family friend days before she died. It was a beautiful silk scarf. The death was not unexpected, but I didn’t write a thank-you note in time. The envelope meant for that task was on my desk for years. It was hers, though she never got it, so I couldn’t send it to someone else. Nor could I bring myself throw it away. So I put it aside, indefinitely, until I moved apartments and it was lost in the shuffle, quite literally, in a box marked “stationery.” I didn’t want my crap to become that envelope, useless and painful and eventually lost. Potential candidates: an Altoids tin full of spare buttons, my half-filled journals, decade-old mix tapes; pens and pencils, giveaway tote bags, decks of cards, reference books; nice things like a painting, a laptop, that scarf; the stuff that goes unnamed in the will, under the clause that includes the words “all the rest of my estate.”

The things we leave behind can be heavy. Perhaps the most special something I could leave my boyfriend would be the freedom not to carry me with him. I was reminded of a poem that the rabbi always reads during the memorial portion of the Yom Kippur service. “When all that’s left of me / is love, / give me away,” it ends. I’d never really thought I was paying attention during that part, but it was there, in my brain, waiting for such a moment. (I looked it up; it’s called “Epitaph,” by Merrit Malloy).

That’s the other option — and, for a while, despite having spent so much time thinking about my will, I was tempted. I could write a simpler will, with only the instruction to give everything to charity, or I could follow the long-standing young person’s tradition and just scrap the whole endeavor.

Except stuff is the only language left to speak. Even Rubin, who says his work is 97% concerned with money rather than objects, knows the feeling: he has a samovar that came to America with his family when they left Eastern Europe with almost nothing. It’s worth little but referred to throughout his life by his mother as his yerushe, Yiddish for inheritance. And “leave me something special” wasn’t all that my boyfriend said. It’s sad to think about, he said, but I like the idea of being named in your will. It’s a privilege to hear someone speaking to you when you thought the chance was gone, he said. No matter what it says in the will, he said, I’ll be happy to hear your voice. He has a point. After all, the verb “bequeath” is from an Old English word meaning “to speak.”

So I decided not to give up on the will. I’ll give my junk and my money to the people I love — though I did end up adding two more clauses before I felt finished. First, I added a few sentences in my own words to the legalese of the template I’d found online: don’t feel bad if you have to get rid of something, I told my heirs. Legally enforceable? No. Worth saying? Yes. Second, I found that something special, something not too heavy.

I printed the will. I found some witnesses and we signed the paper. I folded it up and put it in an envelope and put that envelope somewhere safe. And then I went back to my life.

MONEY Ask the Expert

What You Need to Know Before Choosing a Beneficiary for a Health Savings Account

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Robert A. Di Ieso, Jr.

Q: “What happens to the money in a health savings account when the account owner dies?”–James McKay

A: It’s up to you to decide.

But let’s back up a step: A health savings account offers those in high-deductible health insurance plans the opportunity to save pretax dollars and tap them tax-free to pay for qualified medical expenses, with unused funds rolling over from year to year. Unlike a Flexible Spending Account, you have the opportunity to invest the money. And once you hit age 65, the money can be used for any purpose without penalty—though you will pay income tax, similar to a traditional IRA. So for many people, an HSA also functions as a backup retirement account.

When you open an HSA, you will be asked to designate a beneficiary who will receive the account at the time of your death. You can change the beneficiary or beneficiaries any time during your lifetime, though some states require your to have your spouse’s consent.

Your choice of beneficiary makes a big difference in how the account will be treated after you’re gone.

If you name your spouse, the account remains an HSA, and your partner will become the owner. He or she can use the money tax-free to pay for qualified healthcare expenses, even if not enrolled in a high-deductible health plan, says Todd Berkley, president of HSA Consulting Services. Should your spouse be younger than 65, take a distribution of funds and use them for something other than medical expenses, however, he or she will pay a 20% penalty tax on the amount withdrawn plus income taxes (a rule that also applies to you while you’re alive).

Thus, Berkley warns against a spouse taking a full distribution to close the HSA. He says that it’s better to leave money in the account first for medical expenses, then later for retirement expenses both medical and non—since your partner gets the same perk of penalty-free withdrawals for other expenses after turning 65.

When the beneficiary is not your spouse, the HSA ends on the date of your death. Your heir receives a distribution and the fair-market value becomes taxable income to the beneficiary—though the taxable amount can be reduced by any qualified medical expenses incurred by the decreased that are then paid by the beneficiary within a year of the death.

Failure to name a beneficiary at all means the assets in your account will be distributed to your estate and included on your final income tax return.

MONEY charitable giving

Give to Charity Like Bill Gates…Without Being Bill Gates

Bill Gates, co-founder of Microsoft, co-founder of Bill and Melinda Gates Foundation.
Chesnot—Getty Images

You don't have to be rich to set up the equivalent of a charitable foundation — one that can continue making donations even after your death.

One of my clients — I’ll call him Jonathan — came to me recently with concerns about his estate planning. Jonathan was a successful corporate manager who received a big payday when a major firm acquired the company he worked for. With no children of his own, he’d arranged for most of his wealth to be divided between two favorite charities: a local boys club and an organization that helped homeless people train for work and find jobs. Life had been good to Jonathan, and he wanted to give back.

But recently, there had been some management changes at the homeless support agency, and Jonathan was no longer confident that his gift would be well used. He was thinking about removing them from his trust.

We suggested something that sounded to him like a bold plan, but was really quite simple. Amend your trust, we told him, so that upon your death your funds go to a donor-advised fund — a type of investment that manages contributions made by individual donors.

Jonathan knew what a DAF was. He was already using one for his annual charitable giving because it let him donate appreciated securities, thus maximizing his annual tax deduction. Like many people, however, he’d never thought about donating all his wealth to a DAF after his death. He was under the impression that a donor needed to be alive to advise the fund.

Not so. Jonathan just needed to establish clear rules on who the future adviser or advisory team would be and how he would want them to honor his philanthropic wishes. With a DAF, he could arrange for a lasting legacy of continued giving beyond his own life. Another plus: Because no organization’s name is written into trust documents, changing your mind about what charities to give to is quick and simple. With a trust, changing a charitable beneficiary often requires a trip to your lawyer.

People tend to think that leaving an ongoing charitable legacy is exclusively for uber-wealthy people such as Bill and Melinda Gates, whose foundation gave away $3.6 billion in 2013. While there is no defined level under which a foundation is “too small,” Foundation Source, the largest provider of foundation services in the US, serves only foundations with assets of $250,000 and up. While foundations offer trustees greater control over investing and distribution of gifts, they are costly to set up and run, and have strict compliance rules.

DAFs offer an alternative. Their simplicity, relatively low cost, and built-in advisory board make them an ideal instrument for securing a financial legacy. Unlike foundations, there is no cost to set them up. And the tax advantages are better. The IRS allows greater tax deduction for gifts of cash, stock, or property to a DAF, compared with a foundation. Foundations have to give away 5% of their assets annually, but there are no distribution requirements for DAFs.

All DAFs have a board of directors as part of their structure. Many of them are willing to maintain the gifting goals of a donor after their death and insure that the recipient charities are eligible for the grants each year. At my firm, we have been asked to serve as part of clients’ DAF’s adviser team, to which we have agreed. Upon Jonathan’s death, we will continue to monitor his charitable recipients for quality of services, efficiency, and results — all very important goals of Jonathan’s.

You have many options to choose from. DAFs come in many shapes and sizes, from local community foundations to national organizations. Most of the independent brokerage firms have their own funds, with minimum initial contributions as low as $5,000.

With a little research, a family should be able to find a suitable home for their estate and leave a lasting legacy — whether they are rich, Bill-Gates-rich, or not wealthy at all. To learn about finding the DAF that fits you or your loved one’s vision and values, one way to get started is to check out the community foundation locator at the Council on Foundations.

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Scott Leonard, CFP, is the owner of Navigoe, a registered investment adviser with offices in Nevada and California. Author of The Liberated CEO, published by Wiley in 2014, Leonard was able to run his business, originally established in 1996, while taking his family on a two-year sailing trip from Florida to New Caledonia in the south Pacific Ocean. He is a speaker on investment and wealth management issues.

MONEY Estate Planning

The Hardest Part of Making a Will: Telling Your Kids What’s in It

Kids taking cookies from plate
Gene Chutka—Getty Images

An awkward part of estate planning is telling your kids how much — or how little — they'll get. Here's how a financial planner can help.

For clients, one of the most stressful aspects of estate planning — already an emotionally difficult process — is the prospect of telling heirs what they plan to do with their assets. Because conversations about legacy plans can be terribly difficult, clients may avoid them at all costs — and the costs can indeed be substantial.

Financial planners, however, can help clients overcome the challenges of having these important conversations. Here are a few suggestions for how to do it:

  1. Encourage clients to communicate their values about money in a larger context. Often, clients’ estate plans reflect lifelong values such as a commitment to charitable giving or a wish to provide first for their families. If children are familiar with their parents’ values, chances are they will have a good idea of what to expect from their estates.
  1. Help clients evaluate their children’s money skills. Just because kids grew up in the same family doesn’t mean they will have the same knowledge and attitudes about money. Especially if children will inherit significant amounts, conversations about estate planning can become part of larger conversations designed to help teach them how to manage and become comfortable with their legacies.
  1. If a client’s estate plan does not treat children “equally,” for whatever reasons, it’s best to share that information well in advance and to communicate it privately to each child. There are many reasons why treating children differently in an estate plan can be the fairest thing to do, but that doesn’t mean it’s a wise to let them learn the specifics when a will is read. If parents and individual children can discuss these provisions and the reasons for them ahead of time, there is less likelihood of conflict between siblings after the parents are gone.
  1. Encourage clients not to allow children to assume they are inheriting more than is the case. Not telling them may avoid conflict now, but it will sow seeds for deeper conflict and resentment after your client’s death.
  1. Help clients prepare children for large or unexpected inheritances. I’ve worked with heirs who were stunned to receive legacies much larger than their parents’ lifestyles had led them to expect. If clients have a substantial net worth that’s under the radar — perhaps in the form of land or business ownership — their children may be totally unprepared for what they will inherit. Planners can suggest ways to help the heirs learn more about both the financial and the emotional aspects of managing inherited wealth. They may also encourage parents to consider options, such as giving more to the children during their lifetime, that might reduce the impact of a sudden inheritance.
  1. Acknowledge clients’ fears, even indirectly. Although it is seldom expressed, perhaps the strongest reason for not discussing estate plans with family members is fear. Parents may be afraid that children will be angry or disappointed, will build too much on their expectations for an inheritance, or will be resentful of other heirs.

Talking to family members about estate planning and legacies can be difficult and even painful. Those discussions, however, will almost certainly be less painful in the long run than the stories children may make up after parents are gone about why they made the choices they did.

Financial planners can play an important role, not by taking on the task of telling heirs what parents want them to know, but by facilitating the family conversations. In especially difficult circumstances, the help of a financial therapist can be invaluable. Supporting clients as they discuss their wishes with family members can be an important estate planning service that enhances the legacy parents want to pass on to their children.

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Rick Kahler, ChFC, is president of Kahler Financial Group, a fee-only financial planning firm. His work and research regarding the integration of financial planning and psychology has been featured or cited in scores of broadcast media, periodicals and books. He is a co-author of four books on financial planning and therapy. He is a faculty member at Golden Gate University and the president of the Financial Therapy Association.

MONEY Ask the Expert

Why This Estate Planning Tool Beats Just Having a Will

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Robert A. Di Ieso, Jr.

Q: “We established a living trust this past year and put our home and two rentals into it. Most of our investments are in IRAs, and I don’t want to put them into the trust. I am now thinking that I may not have really needed the living trust. Should I go back to just a will and cancel the trust?”—Mark Schmidt

A: A living trust has advantages that a will can’t offer, so you may want to keep both, says Greg Sellers, a certified public accountant and president of the National Association of Estate Planners and Councils.

A revocable living trust is similar to a will in that it indicates how you would like your assets to be distributed after your death and can be amended anytime. While you should always have a will, a living trust—which is simply a trust set up during your lifetime as opposed to one created after your death—can be a valuable addition to your estate plan. Here’s why.

1. Your estate can be settled more quickly. Unlike with a will, the assets in a trust do not have to go through the probate process. Your heirs can skip the expense (lawyers, executors, paperwork, and the like), potential publicity, and inconvenience of a court-supervised distribution of your estate. And there’s no delay while your heirs wait for creditors to come forward and file claims, even when you owe no one.

This probate escape hatch is more valuable in some states than others. Many states have an expedited form of probate for estates below a certain value, which varies by state. For example, in New York, you can use the simplified small estate process if the property, excluding real estate, is worth $20,000 or less. To see what probate shortcuts your state offers, check Nolo.com’s list.

If most of your estate is in the form of IRAs or life insurance, you will not need to worry about probate either. As long as you have named a beneficiary, those assets will bypass probate.

2. You have back-up investment help. Because you must name a trustee to manage the assets, pay the taxes, maintain good records, and make payment to the beneficiaries—or a successor trustee if you’re managing the trust yourself—you already have someone in place to take over if you become disabled or incapacitated and are no longer able to manage your money.

3. You can set things up for your children. Trusts can also be good if you have minor children or heirs with special needs. When you set up the trust, you can add provisions specifying when a child can receive the assets and how he or she can use the property. With a will, your assets pass straight to your heirs.

If you don’t find managing the trust too onerous, Sellers recommends keeping it since you’ve already gone through the effort and expense of establishing and funding it (you need to retitle the assets you put in a trust, for example). On a final note, you shouldn’t transfer an IRA to a trust. That’s counted as a withdrawal and could subject you to a penalty, depending on your age.

MONEY Ask the Expert

How To Pick a Trustworthy Manager for Your Trust

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Robert A. Di Ieso, Jr.

Q: “I want to set up a trust fund for my son and grandchild, but I’m not sure who I should get to manage it? —Judy Gillis, Crossroads, Texas

A: Once you set up a trust, you’ll need someone to invest the money, maintain good records, handle taxes, and make payments to the trust beneficiaries. The person that takes on those roles is called a trustee, and your trustee (or trustees) could be a friend or family member, a financial pro, or even you, in certain cases.

Another option is a hybrid set-up: Name a trustee who administers the trust but hires an outside manager to invest the money.

Typically, the trustee’s powers come from the trust agreement you establish, and he or she is legally bound to follow your directions and act in the best interest of the trust. You can specify any rules you wish, such as how much income your beneficiaries should receive. Or you can let your trustee have more discretion based on the guidelines you lay out.

“Serving as a trustee should not be considered an honor. It’s a job,” says Greg Sellers, a certified public accountant and president of the National Association of Estate Planners and Councils. “You want someone you can trust implicitly with both the financial responsibilities of managing the trust and with carrying out your desires laid out in the trust.”

Here’s what to consider before you pick your trustee.

What Type of Trust Is It?

If you are setting up a living trust, which is simply a trust you set up while you’re alive, you can act as the trustee and keep full control of the trust’s management. This is the easiest approach. But if you don’t want to tackle this on your own, you can be a co-trustee or name a trustee to take over.

If you are creating a testamentary trust, which is set up in your will and established only after death, you will need to name a trustee.

How Big or Complicated Is Your Trust?

Choosing a family member to manage or co-manage your trust can be a good move for a small- to medium-sized trust. A relative won’t charge you a fee and generally has a personal stake in the trust’s success.

A corporate trustee such as a bank trust department, a lawyer, or a financial adviser will typically know more about trust management, investments, and taxes than a family member, so a pro can be a good choice if you have a large trust or complex assets in it. A professional trustee is also a smart choice if your trust will last for many years or generations.

Sellers advocates a middle-of-the-road approach with a relative acting as a co-trustee or trust protector, which is a person you can designate to oversee a trustee, alongside a professional trustee. This style means the trust will have both an advocate for the beneficiaries as well as an experienced manager.

A professional trustee will cost you, though. You could pay 0.75% to 2.5% of the trust assets a year. Typically, you’ll pay more if your trust is smaller, says Sellers, or if you have high-maintenance assets like apartment buildings within it. To get professional help for less, you could choose a relative as trustee and have them hire an investment company as an independent adviser rather than a co-trustee.

Who’s Right For the Role?

If you want to go with a relative or friend as your trustee, choose someone who is open to learning how to handle the money, who will seek outside help if they need it, and who gets along with the beneficiaries.

Once you’ve got someone in mind, talk with him or her about the role. You don’t want someone to accept out of pressure or feelings of duty when he or she lacks the interest or will necessary to perform the job well.

Sellers also advises against naming one of the trust’s beneficiaries to act as trustee. You want your trustee to manage the trust in the best interest of all beneficiaries and not have conflicting interests.

MONEY Estate Planning

When Tragedy Strikes a Young Family

hospital bracelet on patient
Fuse—Getty Images

A cancer diagnosis prompts a financial planner to reflect on the fragility of life and the importance of preparing for the worst.

I have a client who is 39. He’s married and has two young children. He has an extremely successful career. He and his family are really hitting their stride.

One day he started to feel unwell. Eventual checkups led to a diagnosis of cancer. His wife called me on a Saturday morning to discuss the shock of what they were going through, and to get some basic sense of what to expect next, financially.

There’s no way to prepare yourself for this kind of devastating news. Brené Brown discusses this eloquently when she talks about “foreboding joy” — the sense we sometimes have, when things are going well, that something terrible will happen to us or someone we love.

This mental rehearsal for the worst-case scenario doesn’t make it any easier when we get tragic news; instead, it gets in the way of our truly feeling joyful and present in the moment right now.

What can give us a lot of peace of mind is financial preparation — the knowledge that our families will be taken care of if something happens to us. Here are some important elements of that planning:

  • Life Insurance: If you have young children who are depending on your income, a good 20- to 30-year level term policy is a solid foundation to help support your family through the children’s school years.
  • Disability Insurance: Being injured or sick and unable to work is often more financially catastrophic than death, since your expenses have likely increased to deal with your treatment, but your income has gone away. A good disability policy through your employer or through a private insurer is great protection, since it will provide at least part of your income while you’re unable to earn a living. This coverage is more expensive than life insurance, since it is far more likely a person will become disabled rather than die early, but disability insurance has substantial benefits.
  • Emergency Fund: A baseline amount of cash is the protective foundation to any financial plan. This isn’t because cash is such a great deal, since returns in savings accounts nowadays are minimal at best. Emergency funds are a great deal because they allow us to weather financial storms — for example, covering waiting period before the benefits on a disability insurance policy kick in — and ultimately to take advantage of opportunities when they present themselves.
  • Wills, Living Wills, and Powers of Attorney: If you have young children, this is essential. The issue isn’t if you or your spouse die; it’s if both of you die, since those kids will inherit life insurance proceeds, retirement plan benefits, and more. If you and your partner both get run over by the proverbial bus, you need to make provisions for who will take care of your children. You should make that decision, and not leave the courts to decide if you’re not around. Living wills allow you to state your end-of-life choices; while never easy to carry out, they always provide a level of peace to families who know they’re carrying out their loved one’s wishes.

A few weeks later, I had lunch with this couple. The husband was about to have surgery. “If I don’t wake up,” he asked, “what’s going to happen?”

It was the best of a bad situation: He had insurance. They had an emergency fund. They had the necessary end-of-life and estate-planning documents. Were he to not pull through, his wife and children would be in a position to try to find a new normal. (In fact, he did pull through, and he’s working on his recovery.)

The most important thing for any patient with a long-term illness is to focus on his overall health and mental outlook. Having financial plans in place allows a patient to set other worries aside. He can tell himself, “In the worst-case scenario, my family will be all right. Now I can focus on ‘What can I do to be well?'”

All our days are numbered. The question is, can you be present for the time that you have? The right financial plan can ease the way.

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H. Jude Boudreaux, CFP, is the founder of Upperline Financial Planning, a fee-only financial planning firm based in New Orleans. He is an adjunct professor at Loyola University New Orleans, a past president of the Financial Planning Association‘s NexGen community, and an advocate for new and alternative business models for the financial planning industry.

MONEY Estate Planning

How Writing a Will Is Like Backing Up Your Hard Drive

computer hooked up to external hard drives
Peter Cade—Getty Images

In life as in computing, a little planning now prevents a lot of pain down the road.

Goodbyes are never easy, particularly if the relationship was a cherished one. Such was the case for me and my beloved hard drive. Its capacity for capturing great conversations, thoughts, and images felt irreplaceable. My heart sank as the computer technician conducted its last rites.

But thanks to technological advances, a mirror image of my hard drive’s legacy resided only a download away. The online backup reduced my anxiety and helped me resume my daily activities. Preparing for the inevitable allowed me and my hard drive to appreciate our time together and live life with no residual regrets.

How would life be different if we applied such a healthy, forward-looking mindset to our human relationships through estate planning? After all, as with hard drives, our limited shelf life requires that we make the most of each day while also planning for a peaceful transition. Having loved ones struggle with managing unorganized financial affairs with no assistance only prolongs grief and blemishes fond memories.

Unfortunately, a lack of an estate plan is common for many households. According to a 2012 survey by Rocket Lawyer, 41% of Baby Boomers and 71% of people age 34 and younger don’t have wills. Giving legal direction regarding your finances, property, and children upon your death takes the guessing game out such important matters. Who knows your desires better than you? Otherwise, you leave the courts to untangle your affairs at the expense of your loved ones.

Preparing a will requires that you name individuals who are responsible for settling your estate (executors), taking care of your minor children (guardians) and managing the trusts you establish for the benefit of others (trustees). Having an up-to-date list of your financial assets and liabilities, including digital accounts and passwords, helps smooth the settlement of your estate. (Some people prefer a living trust to direct their estate rather than a will, in order to avoid probate — a legal process that validates the will.)

Other important estate planning documents include a durable power of attorney, durable power of attorney for health care, and a living will.

Durable powers of attorneys (POAs) give another person the authority to manage your financial, personal or health care affairs on your behalf in the event of mental incapacity (brought on by such conditions as dementia or a terminal illness). Health care POAs should also include Health Insurance Portability and Accountability Act (HIPAA) provisions governing an individual’s privacy and access to medical records. A living will gives special consideration to your preference regarding medical treatments that may prolong your life.

Some financial assets and property transfer outside of the will. Financial assets such as life insurance and retirement assets transfer by beneficiary designation. Bank accounts and some investment accounts can transfer by establishing these accounts as a payable on death (POD). How property is titled determines whether the property is considered a probate asset or a non-probate asset. It is important to review these documents regularly to keep up with life changes such as marriage, children, and divorce, and to ensure that assets transfer according to your wishes.

Related:
10 Steps to Painless Estate Planning
Why You Need an Insurance Inventory

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Lazetta Rainey Braxton is a certified financial planner and CEO of Financial Fountains. She assists individuals, families, and institutions with achieving financial well-being and contributing to the common good through financial planning and investment management services. She serves as president of the Association of African American Financial Advisors. Braxton holds an MBA in finance and entrepreneurship from Wake Forest University and a BS in finance and international business from the University of Virginia.

MONEY Estate Planning

What Parents Can Learn From Philip Seymour Hoffman’s Will

Philip Seymour Hoffman
Victoria Will—Invision/AP

When it comes to deciding who inherits what, the law gives the dead wide latitude to impose a number of conditions.

On Tuesday, the will of Oscar-winning actor Phillip Seymour Hoffman was released to the public. In addition to dictating who would receive various parts of his estate, the document also contained a more esoteric request: that his son, Cooper, be raised in one of three cities—New York, Chicago, or San Francisco—to ensure that he would grow up in a rich cultural environment.

It’s an understandable request (and as a New Yorker, I’m flattered we made the list), but is it really legal to dictate where your children grow up after you’ve already passed on? And, more broadly, to what extent can one control their descendants’ actions post-mortem?

By law, Hoffman could not have ordered his child’s guardian to keep Cooper in a particular place. Gerry W. Beyer, a professor at Texas Tech University School of Law, explains that wills can do no more than transfer property from the deceased to their survivors. That said, there are plenty of ways the dead can use property to encourage (or, some might say, coerce) descendants into living a certain kind of life.

If you want to influence your survivors to do something—finish college, go to mass, take good care of Fido, etc.—the best way to do it is to promise them money on the condition they fulfill your request. For example, if you want to make sure your son takes his education seriously, you can leave him $10,000 on the condition he is admitted to a top-ranked college. If Junior knows too many late homework assignments could mean missing out on a huge payday, he’s probably going to hit the books.

Because the deceased have no obligation to give away anything after death, courts tend to give them wide latitude in how their wealth is distributed. The only clear restriction is that inheritance cannot be conditioned on an illegal act (kill the neighbor and you’ll get my car). Otherwise, the condition must simply avoid acting against “public policy”—it can’t encourage something the state doesn’t like—and defining what that includes is almost entirely up to an individual judge.

Ample room for interpretation can sometimes lead to controversial results. In a landmark 2009 ruling, a judge upheld the will of a Chicago dentist that denied funds to any of his grandchildren who married a non-Jew. Various family members sued, arguing the clause provided monetary incentive towards racism. “It is at war with society’s interest in eliminating bigotry and prejudice, and conflicts with modern moral standards of religious tolerance,” one (disinherited) granddaughter wrote in a brief to the Illinois Supreme Court. The verdict? Too bad. The judge found no reason why her grandfather could not choose to favor those descendants who followed his religious traditions.

According to Beyer, this type of decision isn’t uncommon. “This is something the court is doing in its equitable powers,” says the professor. “You can even find similar cases in the same state that go different ways.”

Highlighting this issue, the Supreme Court of Pennsylvania had previously ruled against a different will that also attempted to mandate religious observance. In that case, the document required a son to “remain faithful” to his father’s religion in order to receive any money. Unlike the Illinois case, this court found that the will contradicted the state’s Bill of Rights, which declared no human authority could interfere with acts of conscience. Does that sound inconsistent? Now you’re getting the hang of it.

Luckily, there are some relatively standard limits to what strings one can attach to their will. Beyer advises that courts will often use public policy arguments to deny provisions that are “manifestly unfair or unreasonable.” For example, a provision that would grant a person money for divorcing their spouse would be ruled invalid.

However, when it comes to the more contentious issues, there’s no telling how a case will turn out. Hoffman graciously chose to merely suggest that Cooper be raised in a cultural center, leaving the final decision completely up to Mimi O’Donnell, the mother of his children and inheritor of his estate. However, had Hoffman chosen to stake O’Donnell’s inheritance on keeping his son in a major city, Beyer says, the outcome would rest on the relevant court’s prerogative.

“Where you draw the line can be kind of fuzzy,” Beyer says. “People have done a lot of strange things.”

MONEY Estate Planning

WATCH: Why Philip Seymour Hoffman Didn’t Leave Money to His Children

Hoffman is just one of many wealthy celebrities and businesspeople who have decided against leaving trust funds for their children.

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