Most people plan their estate as a way to care for their loved ones beyond the grave. However, some common estate planning elements can actually do more harm than good. In this article, we’ll look at the typical “I Love You Will.” It turns out that this isn’t always the best way to express your love. Keep reading to understand the problems with this common estate planning move, and how it can be improved upon in your Vero Beach estate plan.
An “I Love You Will” Defined
An “I Love You Will” is a type of last will and testament that is mostly used by married couples where a spouse leaves their entire estate to the other spouse and usually to their children as well. According to LegalZoom, these wills usually contain language similar to “Upon my death, I leave my entire estate to my spouse, and upon the death of my spouse, our assets go to our children.”
Many people believe that this is the best way to express their love for their spouse and care for their spouse’s wellbeing. However, as we’ll see in this article, this isn’t always the case.
Why “I Love You Wills” Miss The Mark
Let’s take a look at the disadvantages of this estate planning choice:
- It doesn’t help your spouse avoid taxes. You can eliminate or reduce taxes by setting up a trust.
- It doesn’t protect your estate in the event that your spouse remarries and then divorces without prenuptial planning. For example, your spouse could remarry and then the assets you left to your spouse could be subject to loss in a divorce if your spouse didn’t adequately strategize pre-nuptials. With the right kind of trust, you can help ensure that what you leave to your spouse will not be lost in a divorce.
- It could cause your children to lose their inheritance. For example, you might intend for your assets to pass to your surviving spouse and then later to your children when your spouse passes away. But if all you have is an “I Love You Will,” your spouse might remarry, and create another “I Love You Will” which could (intentionally or unintentionally) leave everything you left in your will to your spouse’s subsequent partner or even that partner’s children. If you want to ensure that your assets are kept in the family, an “I Love You Will” probably isn’t the best option.
- You have less control over how your assets are used. For example, without a trust, your spouse could decide to leave the assets to a charity which you didn’t believe in, etc.
- It doesn’t prevent your surviving spouse from having to go through the probate process. Probate opens everything about your estate to the public eye and allows anyone to find out what your surviving spouse received. If you have a trust, everything can remain private.
- In a Medicaid planning context, “I Love You Wills” can create a big problem. Sometimes in Medicaid planning, assets are transferred to the caregiver spouse to allow the other spouse to receive government benefits. But then if the caregiver spouse leaves a will to the other spouse that then transfers all the assets back, and the caregiver spouse predeceases, the government benefits will cease. A better option that will not disrupt Medicaid benefits for the surviving spouse is to plan for the assets to go into a special needs trust. This protects the Medicaid spouse for life and doesn’t prevent them from receiving government benefits.
- It sets up your heirs for asset protection issues. If your assets become the property of your beneficiaries through direct inheritance, then anything they own can be lost to creditors, divorcing spouses, bankruptcy losses, and more. An “I Love You Will” doesn’t protect your estate from creditors and lawsuits.
- It doesn’t protect against incapacity issues. Let’s say your surviving spouse develops a health issue such as dementia. Their whole estate – including the assets they inherited from you – could be left to the whims of a guardianship or conservatorship court.
In short, an “I Love You Will” is often too simplistic to be an effective and holistically beneficial estate planning strategy.
Want A Stronger Alternative For Your Estate?
Do you want to create an estate plan that truly accomplishes your wishes? Do you want to rest assured that your estate plan will stand the test of time? Do you want to provide a stress-free future for your loved ones?
Let’s get started today! Whether you’re new to estate planning and want to know where to start or you are interested in improving a pre-existing estate plan, The Estate, Trust & Elder Law Firm, P.L can help! Contact our Vero Beach office at 772-410-5156!
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