Stanton, MI asked in Estate Planning, Child Custody and Entertainment / Sports for Michigan

Q: We are looking to create a will or difference between survivor right vs. will..which is better

We have two children and need to appoint guardianship in the event of our death, as well as distribute our life insurance properly.

1 Lawyer Answer
Nina Whitehurst
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Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: It sounds like you are a married couple and your plan of distribution at the first death is "survivor takes all". That being the case, utilizing death beneficiary designations or joint tenancy with survivorship title holding is effective to vest ownership in those assets in the survivor. However, that only works for assets that are titled that way. Some assets cannot be titled that way, so a will is better in the sense that it can cast a broader net. Also survivorship designations only covers the first death; it does not provide a plan of distribution for the second death. The survivor would need to designate another joint tenant (not recommended) or death beneficiary.

On balance, a pair of wills is superior to a haphazard mix of beneficiary designations.

Keep in mind, however, that wills do nothing to provide for management of your affairs in the event you become incapacitated. For that you need things like financial powers of attorney, medical powers of attorney, HIPAA authorizations, and more.

Also, consider creating a trust-based estate plan. A trust can handle virtually everything except medical decisions, including management during incapacity, plan of distribution at first death, plan of distribution at second death, and more.

Finally, you should talk to an attorney about whether you have enough money saved to pay for nursing home expenses for both of you. If you don't, you mind want to inquire about VA benefits or Medicaid benefits pre-planning.

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