“When to update a Will” is a frequent question in my estate planning practice. I build contingencies into my clients’ Will and Trust documents so that they only need review it at certain life events. Below are important life events that trigger the need to update a Will and estate plan.
Top 5 Reasons for Updating a Will and Estate Plan
- Marriage or Divorce
- Birth of children or grandchildren
- Interstate Move
- Tax law changes
1. Marriage or Divorce
Texas is a community property state. Our state law presumes that all income and property acquired during a marriage is community property, belonging to both spouses. Each spouse is entitled to an undivided 1/2 interest in the community property. As such, each spouse can gift away their 1/2 interest in their Will. However, if a spouse does not make a Will, the surviving spouse could end up splitting the community property with multiple other people under our state’s default inheritance laws.
For example, under Texas inheritance laws, if a spouse dies leaving behind children who are not also the children of the surviving spouse, the children inherit the community property interest. Under this scenario, a surviving spouse could end up sharing ownership in the marital home with their stepchildren. Spouses can avoid these draconian inheritance laws by making a Will and/or Trust.
Fortunately, state law provides that when spouses divorce, all gifts made under a Will to the divorced spouse are void. However, a divorced spouse with minor children may want to create a new Will, and appoint a trustee for their child’s inheritance, if they want to prevent the other parent from controlling the estate they leave behind.
2. Birth of Children or Grandchildren
Minor children cannot legally own property. Because minor children have a right to inherit under our state laws, it is imperative that parents, and grandparents, plan for this inheritance. This includes carefully selecting a guardian and trustee for any money or property a minor child could inherit.
3. Interstate Move
Although the United States constitution vests the federal government with authority to regulate interstate commerce, certain matters are reserved to the states. This includes laws related to the family relationship and property ownership. As such, state laws concerning rights of inheritance vary.
In addition to planning for inheritance, the formal estate planning process also includes planning for “probate”, or the legal process for transferring property at death. Because probate process varies state to state, so too does the type of estate plan needed to deal with such probate. Therefore, when you move to a new state, it is important to have your estate plan reviewed.
4. Tax Law Changes
Thankfully, we do not have estate tax in Texas, but federal law provides for inheritance taxation. Historically, federal law has provided an exemption from the inheritance tax, but these exemptions are subject to change. For example, just 18 years ago, the exemption was only $1 million. Today, it’s over $11 million per person, but only until December 31, 2025. The estate tax rate is currently set at 40%. By comparison, the highest income tax rate is currently 37%. Therefore, if you have an estate greater than $1 million (inclusive of cash, real estate, retirement accounts, and life insurance policies), you may need to have your estate plan reviewed periodically to determine if your beneficiaries could be taxed.
Ask any financial advisor; they will tell you that retirement planning isn’t just about when you can afford to stop working, but also planning to pay for disability and long term care. The CDC says our life expectancy is now 78.7 years. Yet as we plan for more years not working, we must also plan for more years needing care as we age. Estate planning is not just about making Wills and planning for after death, but also planning for incapacity. Thus, its incumbent upon retirees to also consider who they will appoint in their estate planning documents to manage their finances and make healthcare decisions when they cannot.
Life changes are best managed when we are prepared for those changes!
Adriane S. Grace is an estate planning attorney in Frisco, Texas who regularly assists and counsels clients who want to prepare and plan in the wake of big life changes. If you have questions about estate planning in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.