Jan L. Warner & Jan Collins
Question: My wife and I have been married for 40 years and have four children. We have decided that when the first of us dies, the second will make sure that our children get our assets rather than some stranger who might marry the one of us who survives. We saw a lawyer who told us this isn’t possible. When we asked why we cannot direct where our assets go, he couldn’t answer us. We have read about joint wills, and this seems to be the answer. Is this the way to meet our goals?
Answer: In the past, joint wills were in vogue. Instead of two wills, a husband and wife would sign one will that generally left all assets to the survivor. At the time the surviving spouse died, the assets would go to the children. In some instances, the joint will went even further in an effort to keep the survivor from disinheriting the children in favor of a stranger when the surviving spouse remarried and then died before the new spouse.
While wills are generally revocable until death, if a husband and wife intend for their wills to be irrevocable when it comes to the disposition of assets at the second death, they, in effect, have entered into a contract to dispose of property according to the terms of the will that becomes irrevocable at the death of the first spouse.
That said, while the short answer to your question is “yes,” the planning process to get you there might not be as easy as you think. While it is possible to tie up assets at the first death using irrevocable trusts and contracts to make wills, unless properly prepared with a lot of forethought, such restrictions could put a severe crimp in the survivor’s ability to deal with assets and enjoy a reasonable standard of living. See a knowledgeable lawyer to assist you.
Question: My husband and I are in our late 70’s. We have no children, but we do have three cats that we love deeply. We want to make sure that our pets – whom we consider members of our family – are cared for should both of us become incapacitated or die. How do we go about it?
Answer: Your question is both relevant and timely given the fact that a significant number of seniors – both with and without children -- live alone with only a pet or pets as their companions. The planning process, while similar to that for young or incapacitated children, can become more complicated if you don’t live in one of the fewer than ten states that have enacted legislation specifically authorizing trusts for pets.
That said, since your goal is to provide on-going care for your pets from the date of your death or incapacity forward, your durable powers of attorney and wills must contain specific language that will allow others to carry out your wishes when you can’t. Some people prefer to create a trust during their lifetime that is funded upon their incapacity or death. Others choose to create trusts in their wills. In either event, your powers of attorney should contain very specific language about how you want the care to be provided, and whom you want to carry out your wishes. While there are instances where folks have left instructions that their pets should be allowed to continue to live in their homes until the pets die, most people choose to allow their pets to reside with friends or in kennels.
Before any documents are prepared, however, you should talk to your veterinarian and the friends who will be assisting you. Make sure that your documents are clear and specific, and ensure that you compute how much money you will need to set aside for this purpose, including inflationary considerations. Like other trusts, at the death of your pet (or pets), any funds remaining in the trust will be distributed to contingent beneficiaries. Elder law attorneys deal with these issues. You can find one at NAELA.ORG.