Estate planning for couple without kids

September 3, 2021 6:17 AM

How do people deal with our situation in their wills? Please help us prepare to meet with an estate planning lawyer.

We're married with no kids. We suspect we'll have enough money to last both of our lives with some left over. We're going to meet with an estate planning lawyer. In preparation, we've been deciding together what we want our wills to formalize. We think we know what we want, but we're not sure whether it's common or feasible.

Here's what we think we want:
- When the first of us dies, we want the other of us to inherit (nearly) everything, and to be able to use it freely.
- When the second of us dies, we want what's left to be split among several members of my family, several members of his family, and certain charities. We know and agree to the proportions that should go to each of them.
- However, we don't want to force the second spouse to adhere to that plan. We each trust that the other will consider those wishes as the default, and we want to leave each other the flexibility to amend that plan in the face of anything unanticipated. We understand that the surviving spouse could circumvent our shared intent, and we're not worried about whether they will.

Our questions are...
- Is this a fairly common kind of a will that a decent estate planning lawyer will easily be able to write up? Are there boilerplate examples online that are close to what we want, to use as preparation for meeting with a lawyer? Or is what we want unusual?
- If it's unusual, what do people in our situation do instead? I know it would be simpler if the first spouse to die left something to the surviving spouse and something to their own family members right then, without expecting that more would go to their own family members after the surviving spouse's death. But that would require guessing how much the surviving spouse would need for their lifetime, and that's not knowable.
- If it's unusual but it's still what we want, how would we accomplish it? Would we have to have a will that only covers the part that applies at the time of the first spouse's death for now, and leave it to the surviving spouse to set up a will with the rest after that? We'd prefer to have it all documented now.
- Is this what trusts are for? Even though we want the surviving spouse not to be firmly bound by it?

posted by Other to Law & Government (11 answers total)

Best answer: This is totally normal stuff. You each just need a simple will that specifies that if the other spouse is alive at the time of your death, everything goes to them, but if the other spouse is already dead, then everything should be split amongst the other family members and charities according to the plan you've decided on.

This way everything happens as you've spelled out if you both die in quick succession, and the surviving spouse -- as you wish -- could always amend their will to take new considerations into account later (with the default being your current plan if they never get around to it).

No need for anything fancier than that, I'm pretty sure.
posted by nobody at 6:32 AM on September 3, 2021 [9 favorites]

We are in a similar situation and went through this recently. Obviously check with lawyer in your state but sounds like you want a revocable trust. We did a revocable trust that had pour over wills. Mostly the trust was to avoid probate to protect the surviving spouse and the value of the estate (we are in California) and maintain privacy when we pass. Personal items (cars, jewelry) are covered in the will, assets like real estate go in the trust. We designated percentages instead of dollar amounts to those that inherit.
posted by socrateaser at 6:42 AM on September 3, 2021 [3 favorites]

This seems normal enough that any estate planning lawyer can handle it! In fact, I’m pretty sure this is the default, and the way my spouse and I’s very boring, but professionally prepared, will is set up. Essentially you are saying that the surviving partner can alter the will after your death.
posted by rockindata at 6:56 AM on September 3, 2021

We are also in a similar situation and are in the process (read: keep kicking the can down the road) of re-doing our wills to reflect changes in our financial and family situations. Our first wills are simple wills, spelling out the percentages of our estate that will accrue to different persons and charities, and we expect the new wills to be much the same. One question we have for the new lawyer is whether our assets should be equally divided between us so that, should one of us need expensive care, we will not have to spend down more than half our assets before Medicaid kicks in.

Have you considered who will be your executor? Or (if you are so inclined to make these provisions) who will have financial power of attorney and medical power of attorney?
posted by DrGail at 7:02 AM on September 3, 2021

At least in Minnesota, what you have laid out is the default and easy path to a simple will. We drew ours up while our siblings were still able to have more children and some are still planning on it, so it does have a portion set aside for their children split equally. Today, that's four kids. In the future, that may be more.

We both recognize that we can each change our wills whenever we choose, not just after one of us passes. We are both on good terms with the other's families, so it's easy to feel good about the surviving spouse following through. I might feel differently if my spouse and my siblings didn't get along, but that's not something I have to think about right now.
posted by advicepig at 7:15 AM on September 3, 2021

Like nobody says above, this is all easy stuff. Make sure assets are jointly in your name and/or you have Payable Upon Death on anything that's not joint like investments, personal savings, or checking account. I think you can even do this with cars.

As I understand, if you own real estate, a business, or anything more complicated that's when it's helpful to have a trust. I would speak to an estate lawyer if that's the case.

We used Quicken's Willmaker to complete our will, final arrangements, power of attorney, and health directive.
posted by vivzan at 7:44 AM on September 3, 2021

Response by poster: Glad to hear we're boring -- thank you! (I'll still check back in case anyone has additional details or something different to add.)
posted by Other at 7:48 AM on September 3, 2021 [1 favorite]

Nth'ing everyone else who said it's both common & straightforward, and an estate lawyer will absolutely be able to handle it. The only thing to be aware of is that named beneficiaries on your various accounts will supersede what's in your will, so please, please make sure your beneficiaries are all kept up to date. If you don't have named beneficiaries on any accounts, now is the time to add them - if you don't, the proceeds will likely have to go through probate, regardless of what your will states, and adds a time/paperwork burden to the surviving spouse.
posted by csox at 7:49 AM on September 3, 2021 [2 favorites]

It sounds like you're thinking of this as one will/estate plan for y'all as a couple, but that overcomplicates it. Each of you just gets your own will that, as others have said, leaves everything to your surviving spouse if they're alive, or divides the assets as you wish if they have died first. In the case of a surviving spouse, they would then have unofficial instructions to then give amounts they are comfortable with to XYZ individuals/organizations. The question to a lawyer would be whether there's any tax advantage to trying to bake that second "unofficial" part into each individual's will, rather than having it be gifts from the surviving spouse, but it sounds like these are relatively small sums of money if it's possible the surviving spouse would need it all anyway. If you do bake it into the will, the phrasing can be something like "my sibling shall receive the lessor of 5% of my assets or $10,000," substituting amounts that you feel would always be safe to take off the top of your partner's share. Those numbers can also easily/cheaply be edited in the future if your financial situation changes.

The one scenario you may still need to think through however is what should happen if you both die of the same cause, like a car crash. I mention this because the way my partner and I initially thought of things, the legal order of death in such a case would have made a huge difference between what each of our family members received (like "the lessor of..." to the first person's, and then "everything remaining" to the second's), whereas in that case what we really wanted was an even split, not some morbid bonus for one's own relative having hung on slightly longer. The solution to that for us was that both of our wills give basically everything to the spouse if alive, OR do the even split between both partners' families if there is no surviving spouse. The lawyer immediately understood all of this and didn't have a problem with writing it up at all.
posted by teremala at 7:50 AM on September 3, 2021

I agree with those who think this should be very straightforward. A term that helped me conceptualize what you're looking for was "mirror wills." This isn't a legal term, but, rather, a more casual phrase I've heard used to describe what you'd like to do. With mirror wills, each spouse's will is substantially identical to the other's, such that the same testamentary plan (assets to the survivor upon the first death, distribution to relatives, friends, and charities upon the second death) will take effect regardless of which spouse dies first. The surviving spouse does retain the right to amend their will under this strategy, which is true in any case so long as that surviving spouse remains competent to execute a new will. That isn't a concern for you and may even be desirable if circumstances change for that surviving spouse, as you note.
posted by cheapskatebay at 8:02 AM on September 3, 2021

One thing to remember, for everything that you have that can have a designated beneficiary, you should do that now. Your retirement accounts, any life insurance stuff, etc. Having a designated beneficiary and joint bank accounts makes things so much easier when one spouse (or a parent) passes away. Those things don't have to go through the will/probate process and can be used immediately after death by the beneficiary.
posted by teleri025 at 8:51 AM on September 3, 2021