Long Term Planning Wills, Trusts, and Estate Planning

5 Reasons an “I Love You” Will Isn’t as Romantic as You May Think

Valentine’s Day bring roses, chocolates, and romance. But for Estate Planning Attorneys, it also brings “I love you” Wills. This simple Last Will and Testament is primarily used by married couples where each spouse leaves all their assets to the survivor of them. Upon the surviving spouse passing, then their remaining assets are left to their children. While this type of planning makes sense on the surface, this may not be a good idea for everyone.

Here are 5 reasons why “I love you” Wills are often a poor planning option:

1. It provides no protection for your assets.

Once your assets are owned by your beneficiary, they become subject to their creditors. If your surviving spouse needs nursing home care those assets will be subject to a spenddown or MassHealth recovery. With monthly nursing home costs in Massachusetts approaching roughly $14,000 per month, assets may be dissipated before reaching your children.

2. Wills need to be probated.

A surviving spouse will still need to probate an “I Love You” Will. Probate is an expansive, time-consuming process that delays your beneficiaries from receiving their inheritance. It is also a very public process where details of a family’s inheritance are available for any nosey neighbor or creditor to see.

3. There is no guarantee assets will go to your children.

In an “I Love You” Will, your assets now belong to your surviving spouse to do what he or she pleases with these assets. The surviving spouse can change their Will and alter who gets what. For example, if your spouse remarries after your death, he or she can change their Will and decide to leave your hard earned assets to their new spouse, and not to your children.

4. Estate taxes may increase.

An “I Love You” Will places more assets into the surviving spouse’s estate which can result in an overall increase in estate tax. By working with an Estate Planning Attorney, trusts can be set up to capture the maximum estate tax exclusion amount (currently, $1 million) in the first to die’s estate, thereby lowering the total estate paid when the surviving spouse passes.

5. There is no protection against having to seek a guardianship or conservatorship.

A Will does not become effective until after you die. It does not control what happens to you or your assets should you become incompetent. In addition, if all your assets are left to your spouse after you die, and they become afflicted with Alzheimer, those assets could be under the control of a court appointed guardian or conservator. For your family, seeking this type of court authority is costly and potential embarrassing for the surviving spouse. Placing your assets in a revocable trust can avoid court involvement and allows you to select the people you have the most confidence in to manage your property.

Before you make an “I Love You” Will your Valentine gift, speak with an experienced elder law or estate planning attorney. They will give you the options to protect your hard-earned assets and beneficiaries.

Founded by a nurse attorney and with offices in Acton, Burlington, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.