There’s an old military adage that says, “No good plan survives engagement.”
While this quote’s timelessness must lend credit to its applicability in battle, it transcends its martial roots and applies equally as well to law. Especially Estate Law.
Take for instance the idea of a Last Will and Testament. A Will is probably the most well known and well-understood items in an estate plan. The purpose of the Will is to make sure your assets go where you want them to go after you pass away. It need not be too complicated, and in many cases, Wills have been as simple as notes scratched on a piece of paper from the deathbed of the person writing the Will. <- We do not advise this, but if it is a bad idea and it works, is it indeed a bad idea?
Today, and this month, we are celebrating the Month of the Military Kid. As a law firm, this got us thinking, what can we do to celebrate?
Share updates and resources, check. Spread the good word, check. Educate… we can do that! That is what this blog is all about. Getting good information, usable information, from our brains and into a forum (this forum!) where readers can make informed decisions. In that spirit, the purpose of this article is to answer for Veterans and those still serving, why their Military Will is not enough protection for their family, and show them how to fix this.
Your Military Will Just Is Not Enough
It’s not your fault, and it is not a bad start. But the hard fact is, your military Will is not enough protection for your family. Here’s why.
As we mentioned above, a Will of any type is designed to designate who will get your assets when you pass. The process begins with your death and then must go through a legal action known as probate. Probate is the bane of estate planners for several reasons. The top of these reasons being time, cost, messiness.
Probate is an Unnecessary Pain
Death is a hurry up and wait process when probate is factored in. You are scrambling around trying to figure out last arrangements (if you haven’t set up an estate plan ahead of time), trying to figure out the finances of paying for burial or cremation, ceremonies, and getting family and friends together. Then, you have all the assets of the deceased to figure out what to do with.
Houses, cars – are they owned? Who has the right to sell them? Trinkets, storage items, family heirlooms, tv’s, jewelry, books, intellectual property, investments…the list is endless. And it is going to take 6-9 months to figure out who has the right to even make decisions on these assets. That is 6-9 months to work through probate, assuming the issue of ownership is uncontested!
Let’s set aside the time suck that is probate on Willed assets and work our way through costs. Get ready to pay up to 10% of the assets of the estate just to transfer them to where they are supposed to go!
If you are keeping track that’s thousands of dollars and 6-9 months so far. Again, IF the declarations in the Will are uncontestable. Do you have an ex-wife that owns half your house but your adult kids and your current fiance’ are the ones named to inherit your assets in your military Will? How’s that going to be settled? Who is going to help you (or really them) to figure it out? And how much is it going to cost?
Wills In the Military
Being honest, we are pointing out the drawbacks of Wills because there is another way for young families to prepare for the future. An approach that can release them & you from the turmoil of probate, the financial burden of an unnecessary legal process, and avoid the messiness of contested assets altogether. So why does the military get service members set up with Wills in the first place?
For one, Wills are relatively straightforward and easy to set up en masse. Did your command order you and 100 other people to set up your military Will through JAG? Was it a pre-deployment Will or something set up for family day? If so, it may be very limited in scope and entirely out of date if any one of a hundred or more things have happened since it was penned.
New kids, new property, new assets, new marriage situations, and more are all reasons to update a Will. And in reality, updating a Will is not as simple as crossing off an outdated item and adding a new issue. You are likely going to have to re-write the whole thing.
So, while military Wills get the job done, temporarily. They do not grow with you and your needs, and if it has been a year or more since you established yours, you need another option.
Another Option – Let’s Talk Total Estate Planning
Wills are a means to an end and can be effective if you use them in the right way. However they do come with drawbacks, and for a young military family, there are strong reasons to consider other paths for estate planning. Especially, trusts, powers of attorney, and other options.
Recall from this discussion some of the drawbacks of Wills, and particularly military Wills.
- To transfer assets upon death requires probate, which can take 6-9 months;
- Probate can cost up to 10% of the assets of the deceased;
- Disputes over the Will can lead to painful situations which are only solved in probate court; and,
- Wills only cover items and beneficiaries specifically. Any change to your situation and family might change the whole dynamic of the military Will.
A trust on the other hand
- Can transfer assets almost immediately upon death, or even before passing if it is set up to do so.
- Will not require anyone to pay lawyers or a probate court. Once the trust is set up the only cost is modifying it, if necessary.
- Trustees (recipients of the trust) are decided between you and your estate lawyer when drafting and updating the trust. It is very clear who your trustee(s) will be and under what conditions they assume control of the trust that your assets have been placed in.
- You can set up your trust to be disbursed to certain people in certain circumstances. If you want your brother to receive part of your assets upon passing but not his spouse, you can make that a condition at any point.
- Lastly, a trust is private. The process of going through probate opens up the details of your assets to the public eye. Your beneficiaries could have unscrupulous suitors showing up at their door if you have a sizable estate to pass on. A trust being disbursed to the trustee(s) in the manner you wanted is not handled in the public eye.
Should You Scrap Your Military Will?
You already know there are no absolutes in life. And as we have discussed in this article, this sentiment is true in death too!
Should you scrap your military Will wholesale? Maybe not.
At the very least, it is a fantastic jumping off point to discuss what else you should be considering or should have already considered.
The good news is that while you are still alive, it is not too late!