by Josh Bryant
In the golden age of the smartphone, you’re never far from a camera. This has made the sharing of videos and photos easier than ever before. Easy access to a quality camera has led many people to wonder: can I make a video will? More importantly, folks are curious about whether such a “will” can hold up in court. Given how common technology is these days, it’s natural to have such questions!
Unfortunately though, the law has yet to catch up with the constantly evolving digital trends. In most states like Arkansas, a will must be written down, signed, and witnessed for it to be considered valid. Video wills can be used to accompany the written document, but generally, a standalone video account of a person outlining their estate plans will not likely stand up in court. It may, however, be used to contest a will.
Some argue that the face-to-face, personalized nature of video wills should trump the old-fashioned signing of documents. While the way wills are handled in the future may indeed change, the law is unlikely to reflect such evolving attitudes soon. For all their benefits, video wills reflect just a few moments in time. Official documentation of the person’s wishes, complete with signatures and witnesses, will likely continue to remain supreme in the eyes of the law. In order for video wills to take over, legislatures would have to design a mechanism by which the video could be authenticated much like a will is authenticated by the witnesses who observe you sign the will.
That’s not to say, however, that all wills are written down all the time. Some states are willing to recognize oral wills made on a person’s deathbed. Also known as a nuncupative will, these oral statements are often made when someone is too sick to have their estate plans formally executed. Nuncupative wills aren’t accepted in every state, though, and they rarely supersede a written will (if one exists). Arkansas does not recognize nuncupative wills.
If you have specific instructions for how your assets are distributed after you pass, it’s worth spending a little time with an estate planning attorney like Josh Bryant to formalize your will or trust. Should you choose to make a video will in addition to the written estate plan, it may be used as visual proof that you were of sound mind when you made it. You may wish to read the will on camera and add in explanations for the reasoning behind your choices. Such a video may help clarify your wishes and settle any will contests from relatives unhappy with their inheritance. Josh Bryant can assist with this as well.
Your legacy is important. Don’t leave it to chance by recording your wishes on a smart phone. Instead, work with an experienced estate planning attorney like Josh Bryant – it’s the best way to ensure your wishes are carried out in the way you intend.
Whether or not you currently have estate planning documents, one important item to add to your calendar is getting an estate plan checkup.
Don’t Have an Estate Plan?
If you don’t already have an estate plan, then getting one in place should be at the top of your to-do list.
Why? Because without an estate plan, you and your property may end up in a court-supervised guardianship if you become incapacitated, and your property and your loved ones may end up in a time-consuming and expensive probate proceedings after you die. Josh Bryant is often asked if a simple will is enough, and while he appreciates the desire to cut costs the possibility of a guardianship or probate is reason enough to have a trust in the vast majority of scenarios.
Worse yet, if you don’t take the time to have any estate planning done, then the state where you live at the time of your death will essentially write one for you. It most likely won’t divvy up your property the way you would have and certainly will not protect your heirs the way you would.
A common misconception is that estate planning is only necessary for wealthy people. But this simply isn’t true – anyone with a bank or retirement account, a home, or a family needs to make a plan for what happens if they become incapacitated or when they die. Of course, the complexity of the plan will vary depending on your circumstances, but all estate plans should be put together with the help of an attorney like Josh Bryant who is experienced with the legal formalities required to create a valid will, trust, health care directive, and power of attorney in Arkansas.
How Old Is Your Estate Plan?
Do you already have an estate plan? If you do, then please pull your documents out of the drawer, dust them off, and look at the date you signed them.
Were your documents signed in the 80s or 90s, or, worse yet, before 1980? If so, please run, don’t walk, to the phone and call estate planning attorney Josh Bryant. Your documents are terribly out of date and need to be updated as soon as possible.
Did you sign your documents between 2000 and 2009? Aside from the federal estate tax exemption jumping from $675,000 to $3,500,000 during that time period, state estate taxes disappeared in many states. Because of the significant changes in federal and state estate taxes, documents from this time period may be out of date and need to be tweaked in some shape or form.
Did you sign your documents between 2010 and 2017? Federal estate taxes, gift taxes, and generation-skipping transfer taxes went through major changes during these years, and “portability” of the federal estate tax exemption between married couples was introduced. Unfortunately, while your estate planning documents may only be a few years old, they very likely do not take advantage of the opportunities made available from recent changes in federal tax laws.
And, it’s not just tax laws that are changing – modifications to state laws governing wills, trusts, health care directives, and powers of attorney may warrant some revisions to your estate planning documents as well. Just this session, the Arkansas General Assembly passed several acts affecting how trusts are treated in Arkansas.
And last but not least, regardless of what year you signed your estate planning documents, think about all of the changes in your life since you signed them. Did you get married or divorced, have a child or two or a grandchild or two, or move to a new state? Did you sell your business, retire, have a significant change in assets, or win the lottery? Any major changes in your family or financial situation will certainly have an affect on your estate plan.
Estate Planning Is Not a One Shot Deal
Estate planning is not a static event that you can grudgingly do once and then forget about it. On the contrary, estate planning is a continuing process, because life is a moving target that is full of constant change: Your estate plan needs to change as your life changes.
Josh Bryant is here to help you navigate the changes that have occurred since you had your estate plan prepared and ensure your wishes are still being carried out as you envisioned. For those needing an estate plan, Josh Bryant is here now and in the future to mold your estate plan as you move through the various stages of life.
So you have done the hard work of establishing an estate plan. Good for you! However, you still have serious work to do to ensure that the strategy you have selected will maximize your peace of mind and protect your legacy.
Josh Bryant agrees with the vast majority of estate planners: estate plans should be like living, breathing creations that reflect the changes in your life. Your life can and will change due to new births, children getting older, and other shifts in the family; changes to your investment portfolio, career and business; and changes to your health, where you live, and your core values. Likewise, external events, such as new tax legislation passed in our state or the development of a novel financial instrument, can throw your plan off track or open the door to new opportunities. Josh Bryant stays on top of these new laws and means of investment.
Obviously, you should do due diligence without spending inordinate amounts of time noodling over your plan. To that end, ask yourself the following “stress test” questions to assess whether you need to meet with Josh Bryant to update your approach:
1. When was the last time you updated your will or living trust? Since then, have you had new children or gotten divorced? Have you moved, opened or sold a business, or just changed your mind about the type of legacy you want to leave behind? Especially if big, tangible life events have occurred, strongly consider updating your documents as soon as possible. Also keep in mind that there may have been changes in the law since your last update that could significantly affect the viability of your plan.
2. Who have you named as executor and trustee? If you had to start your planning over from scratch today, would you still name the same people? If not, why not? Did you choose the best person for the job or was your choice based on less relevant factors? Is the person you chose still available to serve in that role?
3. Do you have adequate insurance? Many people do not have enough insurance for themselves or their businesses. They also fail to name contingent beneficiaries. Get your insurance policies in order, and make sure your designations match your estate plan.
4. How much of your property is jointly owned with someone other than your spouse? Jointly owned property has the potential to be double taxed. Take a look at your real property and seek advice on the proper adjustments to make in order to save on taxes when it's really necessary to save on taxes.
5. How's your record keeping? Nothing drives an executor crazy like sloppy record keeping.
6. When was the last time you gave your plan a thorough once-over? Even if nothing “huge” has happened in your life recently, if it’s been over five years since a qualified estate planning attorney has assessed your strategy, schedule a time to meet with Josh Bryant. Identify any issues, and iron out the kinks one at a time.
After going through the “stress test,” if you have any questions, please feel free to give Josh Bryant a call. Estate planning is an ongoing process, and he wants to make sure your wishes withstand the test of time.
Please allow me to be frank. It’s unrealistic to think that a piece of paper you draft, reflecting your life at a certain time, will work when your life has completely changed some years later. I'll use the Kendrick family as an example.
Meet the Kendricks
Meet Bill and Karen Kendrick. They got their first estate plan in place when their daughter, Jessica, was born 30 years ago. They updated it when their son Steve came along 4 years later. After attending one of Josh Bryant's living trust seminars 7 years ago, they got a fantastic trust-based plan in place, protecting themselves, their children, their grandchildren, and their dog, Sadie.
Unfortunately, the Kendricks didn’t join Josh Bryant's client maintenance program; instead, they elected to take responsibility for calling him for updates themselves. Life got busy and, as you might guess, they never called to update their documents.
Here’s what’s changed in their lives in the last 10 years.
Do you think their estate plan will still work the way they want it to?
Changes in Your Own Life
The Kendricks have experienced a lot of changes, but those changes are typical of what 10 years brings. Think about the changes in your life over the past 10 years — or since you last updated your estate plan.
Have you moved? Do you have more children or grandchildren? Have you started a business, suffered health problems, or purchased a new home? Do you have new accounts and investments? Do you now care for a parent, pets, or dependent children? Have you remarried, gotten divorced, or retired? Has someone you loved died? Have friends or family named in your plan as trusted helpers moved away, or has your relationship changed? Are your children now adults and able to help you? Do you want to help with grandchildren’s college or dance lessons? Do you see the world in a different way?
Many things have happened in the past 10 years. Your estate plan needs to reflect the changes in your personal life, financial situation, and goals. There have also been changes in the law. Josh Bryant stays abreast of these changes to protect his clients in better and better ways, so the way he does things has changed.
Is Your Estate Plan Out of Date?
If you’ve experienced changes like the Kendricks, or it’s been more than 3 to 5 years since you updated your estate plan, it’s time to come in. Josh Bryant will review your plan and chat with you about what’s been happening in your life. He can get you and your estate plan up to date, reflecting where your life is now.
Josh Bryant, Managing Attorney
Confused about the differences between wills and trusts? If so, you’re not alone. While it’s always wise to contact experts like attorney Josh Bryant, it’s also important to understand the basics. Here’s a quick and simple reference guide:
What Revocable Living Trusts Can Do That Wills Can’t
1. Avoid a guardianship.
A living trust allows you to authorize your spouse, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding guardianship proceedings during your life. This provides a lot of security for many.
2. Bypass probate.
Property in a revocable living trust does not pass through probate. Property that passes using a will guarantees probate. The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming sometimes taking years to resolve. Josh Bryant believes this is probably one of the top two key benefits of a trust. Trusts are more effective and efficient in accomplishing your goals.
3. Maintain privacy after death.
Wills are public documents; trusts are not. Anyone, including nosey neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a will. Trusts allow you to maintain your family’s privacy after death.
4. Protect you from court challenges.
Although court challenges to wills and trusts occur, attacking a trust is generally much harder than attacking a will because trust provisions are not made public. Court challenges make your estate distribution an inefficient process. A trust can provide you with security from this possibility.
5. Allow for structured payouts.
Under a will, once an heir turns eighteen, they automatically get everything under the will unless you have some sort of trust which requires a payout over time. Young parents and grandparents who may leave property to their grandchildren can use a trust to ensure that assets are paid out over time rather than given in lump sum to someone who may not be mature enough to handle it. Josh Bryant believes this is one of the two best reasons to have a trust.
What Wills Can Do That Revocable Living Trusts Can’t
1. Name guardians for children.
Only a will - not a living trust or any other type of document - can be used to name guardians to care for minor children. The courts are not required to follow your wishes if the judge believes that it would be in your children's best interest to be in the custody of another person, but most of the time the judge will follow your wishes. The security of knowing your children will be protected is in and of itself enough of a reason to get a will.
2. Specify an executor or personal representative.
Wills allow you to name an executor or personal representative - someone who will take responsibility to wrap up your estate after you die. This typically involves working with the probate court, protecting assets, paying your debts, and distributing what remains to beneficiaries. But, if there are no assets in your probate estate (because you have a fully funded revocable trust), this feature is not necessarily useful.
What Both Wills & Trusts Can Do:
1. Allow revisions to your document.
Both wills and trusts can be revised whenever your intentions or circumstances change so long as you have the legal capacity to execute them.
WARNING: There is such as a thing as irrevocable trusts, which can only be changed under certain circumstances, using very specific methods. These are powerful estate planning tools in certain circumstances, but should be entered into with care and the assistance of Josh Bryant.
2. Name beneficiaries.
Both wills and trusts are vehicles which allow you to name beneficiaries for your assets.
3. Provide asset protection.
Trusts, and less commonly, wills, can be crafted to include protective sub-trusts which allow your beneficiaries access but keep the assets from being seized by their creditors such as divorcing spouses, car accident litigants, bankruptcy
trustees, and business failure. This is just another level of security that estate planning can provide.
While some of the differences between wills and trusts are subtle; others are not. Together, we’ll take a look at your goals as well as your financial and family situation and design an estate plan tailored to your needs that leverages the law in your and your family's favor and secures your assets in an effective and efficient manner. Schedule an appointment and let’s get started.
Josh Bryant is an attorney, entrepreneur, pastor, and visionary with a heart to see churches, businesses, and families more secure, more effective, and more efficient in fulfilling their mission and bringing glory to God.