Where there's a will kit, there is confusion

March 25, 2013 10:38 PM

I don't have a will and have never written one before. I don't have a lawyer and don't really want to get one. In a bit over a month, I will be going into hospital for some surgery. It's not particularly dramatic surgery and I expect it to go well, but I seem to have used it as a spur to get a will kit*, which is something I have meant to do for a while now.

*The will kit is a fairly generic thing that gives you some basic information and instructions as well as a form to fill out which is then your will. It is valid throughout Australia, where I live.

Since I got the will kit, I have been musing about how to complete it. Oddly, the first thing that occurred to me was not "who should get my car" (probably my single most valuable possession, not that it's worth that much) but rather "who should get my books". But is this silly and micro-managing? I understand that it's my will and thus it's about what I consider important, but I have no idea what kind of things people put in wills apart from large sums of money (which I don't have).

I don't expect anyone to post exact details of their last wills and testaments, but even just some general advice about the types of things you've included (if you've made a will) would help me out.

Also, it occurs to me that as someone with dual citizenship (Australian/US) I have no idea how the Australian will might affect any US assets I have (an IRA that my dad started up for me ages ago). Do I need a separate US will? If this is too complicated to answer in this forum and I need to see a lawyer, that's fine, I just don't want to fork out money for something to which the answer is: "The Australian will is fine. Now pay me $200."

posted by Athanassiel to Law & Government (7 answers total)

I'm not your lawyer. It is complicated. In your case, the worthwhile factor might depend entirely on if you have any good stuff to pass on.

Typically any major asset that does not have any particular beneficiary designations on its own can go into a will or trust. BUT, it depends entirely on where you live, what your status is (single, divorced, kids?, etc) and the laws in the areas where you hold assets. What a type of document can do is also dependent on the jurisdiction. An Australian will in California is lunch napkin paper.

So yes, you would need separate documents for both areas where you hold assets.

So you can say... exactly your car, your house if you like. Your IRA however should already have some sort of beneficiaries set up. If they aren't current, they should be updated. Please look into your IRA's managing institution for that.

One of the complicated issues will be how probate works in Australia... IMNYL, but in the US (or at least in California) a mere will does not avoid probate. However your assets if they are very worthless will not even go to probate. If they do they will be stuck in court even with a will for some time. Typically assets get released in a typical inheritance way though (down the line). If there are multiple descendents, etc, it can be a mess. Think Crusader Kings pretender revolts.

For your books and possessions, someone will probably end up at your house throwing tons of stuff away. Yes, that is sad, but very true. After an elderly neighbor died, there was a dump-yard purpose trash container trucked in to take care of all the junk in the house. Only the worthwhile stuff was kept or sold on the spot. Mainly expensive motorized wheelchairs. There have been other houses in my neighborhood where probate crawled along for nearly 2 years before any descendent could do anything to the real estate.

For an example...
In California at least, a "(Living) Trust" on the other hand can become its own sort of afterlife management asset. It is a basic entity which you can actually use a beneficiary itself. For example, the house I live is literally in the name of a document itself. So it doesn't matter if the makers and signers of the trust document dies, as the trust is the holder of the house and the trust is then administered after death by the executor of that document. There ends up being no need to change titles and such post death. The Will in this case directs Probate to the presence of the Trust, thus releasing the estate (dead person's stuff) to the private trust's management.

Anyway the issue is complicated to say the least and I'm writing like a drunk lawyer.

In my example, the material possessions are all clumped together into a segment of the trust document assigning the duty of dealing with all this junk to the executor. I would assume you can in your will ask that your books have a designated beneficiary or more so even give it to an institution. The executor in my example is proceeded by only 2 other entities, another executor to substitute if the first can't do it, and some random charity. This equals, if everyone in the family is dead, it just doesn't matter anymore.

One of the important things to remember is that the simple idea of designating some"one" is often times very shortsighted. If that person dies, those books are just junk in the house again. Your will failed to mention that possibility. Some long lost relative shows up to claim your property, you hope your will made the designation clear. That and all sorts of stuff makes wills and stuff complicated.

So do you feel like you have enough of significance to pass stuff on in specifics? Do you have kids? A spouse? IMNYL again, but if you have kids or a spouse naturalized to your area it shouldn't be a big deal to flop over now (sorry!).
posted by Bodrik at 11:55 PM on March 25, 2013 [1 favorite]

Response by poster: Sorry, I should have specified: I am single, no children, all relatives live in the US and not here. I do have beneficiaries assigned for both the IRA and my superannuation (which is consolidated into one fund). Trying not to take over my own post but these sound like relevant details!
posted by Athanassiel at 12:01 AM on March 26, 2013

I don't have a lawyer and don't really want to get one. In my opinion, this is the least of your problems. I think the hardest part is making the decisions about what to put in the will (and other documents). Getting is legalized is the easy part.

I am so not a lawyer, and I haven't made my will yet for a lot of the same reasons as you, but here's what's on my list:

You have to pick someone to be the executor of your will. I am having the same problem as you in that my family does not live in the same location as I do: do I pick someone local (a friend? a law firm?) or do I pick someone in my family who lives 2000 miles away? I still haven't decided; I'm going to have several people in mind and then this may be one of the things I ask the lawyer when I get there.

You have to decide if you have things that you want to go to specific people, like your books. Make a list of stuff like that, and a list of who you want it to go to. You can specify a second/third person in case the first has died, but you can also (I think) say that if that person has died then the books will be part of the rest of your estate. You don't have to name everything in your household (the yellow spatula to Aunt Dorothy, and the wooden mixing bowl to Cousin Sue). Just the stuff that you think a specific person would want to have - maybe your niece would want the necklace that your mom gave you, for example. Thinking about your car - it's doubtful that your overseas relatives would want it (too hard to ship, not certified for US laws); if you have a local friend to specifically give it to, great; otherwise, it would get sold and just be part of the money in your estate.

After that, you have the rest of your estate: someone is going to have to get into your (I'm assuming) apartment and deal with the stuff. If you think one of your relatives would come over to do that, great. Otherwise you have to think about whether it would be your landlord or a third party salvage company - both of those would be paid with any money that is in your estate and/or that they make from the sale of your junk. I have no idea how to put all this in your will, but you should think about how you think it would happen once you are gone. You might ask your relatives how/if they would want to deal with this.

You should also make a list of any bank accounts and all the bills you pay, showing account numbers and contact information. Especially any auto-pay bills - those will need to be stopped. While you are at it, make a list of any online accounts/passwords that you want to have taken care of after you go.

Also, you'll want some kind of medical directive. There are checklists out on the internet that ask all the hard questions: would you want a ventilator? pain meds? CPR/Shock paddles? etc. And who should be the person to make those decisions if you are not able to? Again, I have no idea how to make it legal, but it's the actual decision-making which is hard.

Once you've made all the decisions, you can use the kit or a lawyer to finalize it.
posted by CathyG at 6:40 AM on March 26, 2013 [1 favorite]

You can make it as simple as you want -- "all my estate to go to my parents, to be distributed however they see fit" -- or as complex and precise as you want. I recommend *against* enumerating all your accounts in the will itself, because such things might change more frequently than you want to update your will, but making a separate list for the convenience of your executor (and trying to keep it updated) is a kindness. But anything that you feel strongly about, or think that your family would argue about, is worth listing. Also, it helps to make sure that local authorities know who/where your family are -- that is, explicitly saying that your estate should be divided between your parents (if alive) and your sister lets them know at least who the relevant parties are.

Having a will at all makes distriibution of your estate much easier. It's not actually critical that you get lots of bells and whistles (although a medical directive is a good idea); in fact, there was a period after my daughter was born and before we got to a lawyer when my will was hand-written by me and stored in our closet. It would have worked. And it spelled out our desired order of inheritance (spouse, child, niece, sister) depending on who was still alive and/or of what age.
posted by acm at 7:10 AM on March 26, 2013

I think putting specific items in a simple will is a bad idea, unless they are family heirlooms of value (sentimental or monetary). If you do that, you may end up having to constantly tinker with the will as the relative values of the items go up and down, or you trade them in or replace them. If you keep it simple, you can file the will and only need to update it if your circumstances change drastically. (I mentioned my specific car in the will I wrote 30 years ago, and was embarrassed to come across it recently and realise that that particular bequest is a good 25 years out of date)

Another point to keep in mind if you're making a will to last in the long term is that the residue after specific bequests should always go to the people you want to benefit most: if you leave a few thousand cash to your siblings, and the residue to the cat's home, at a time when you only expect to have a few hundred left over, that may sound reasonable; but if you never get around to changing it, in 20 years time the residue may be huge in comparison to the listed bequests, and your siblings feel very hard done by.
posted by Azara at 7:23 AM on March 26, 2013

And just to add: making a will can be particularly important for single people, where the legal chain of inheritance in the absence of a will may not be what you expect. The reason I made my 30-year-old will was that my father had remarried, so by Irish law, if we all died intestate, my bit of money could go from me to my father to my stepmother to my step-siblings, rather than to my own siblings that most people would assume are my next-of-kin.
posted by Azara at 7:30 AM on March 26, 2013

Response by poster: Thanks to those who have answered - I know that none of you is my lawyer, so I do appreciate the time you have taken. It's all been interesting reading and there's some great practical suggestions in there!

And yes, the decision-making is definitely the hardest part, I think that's what's stumping me so I hoped other people's decisions would help inspire me.
posted by Athanassiel at 9:06 PM on March 26, 2013