WELCOME TO THE WILL INFORMATION PAMPHLET!
To have a military Legal Assistance Office prepare your actual will you will need to get a copy of the estate planning questionnaire, fill out the form, and return the form to the nearest military Legal Assistance Office. The estate planning questionnaire is posted on our legal assistance web page. Another document posted on our legal assistance web page that may be useful in your estate planning is the letter of instruction. The letter of instruction educates your estate executor or executrix about your personal financial affairs, so the probate process can be easier for your executor or executrix, family, friends, and loved ones.
This information sheet is intended to explain some of the terms and questions used in those documents.
I. ABOUT THE WILL QUESTIONNAIRE? The Will Questionnaire is to help us speed up and simplify the process of preparing a will for you. In this cover letter we try to answer some common questions.
II. DO YOU NEED A WILL? If you don't have a will, most states presume that you want your estate to go to your next of kin. Your next if kin is usually defined as your spouse. Therefore, all of your possessions would go to your spouse if you died without a valid will. If you are not married, then your estate would go to your children. If you had no children, then your parents, followed by your brothers and sisters, aunts and uncles, cousins, etc would follow as beneficiaries. Finally, if you have no living relatives your estate goes to the state.
If you don't want your estate to be inherited in this progression, then you should have a will. Also, if you have children it is a good idea to designate a Guardian (the person who will look after your children if you and the other parent die). If you have specific gifts, this should also be stated in a will. Finally, having a valid will shortens the time required to settle the estate and generally costs less than the fees for state involvement.
III. SIMPLE WILLS ONLY!! The Legal Assistance Office prepares only simple wills. If you have an estate worth over $1,500,000 (including life insurance benefits), then you should contact an attorney who specializes in estate planning. There are substantial federal gift and estate taxes on estates over $1,500,000. Furthermore, state estate taxes may be owed for estates with much lower values depending on the individual state of residency of the deceased. A qualified attorney may be able to set up simple trusts and other devices to protect your assets so that your heirs, and not your uncle (Sam) inherit your estate. Please feel free to discuss your options with a Legal Assistance Officer.
IV. WHAT ABOUT LIFE INSURANCE PROCEEDS? Life insurance proceeds are usually not passed through your will, however, as stated above, they are usually taxed as part of your estate. Life insurance beneficiaries are listed on the policy (or on your Page Two in the case of SGLI) and are not effected by the will. One exception is when there is no beneficiary listed on the life insurance policy, only then does the will determine who gets the money.
V. WHAT ABOUT SPECIAL GIFTS? A Special Gift (also known as a Specific Bequest) is a gift of a particular item to a certain person, charity, or corporation. For example, "I leave my blue, fur pajamas with the fire engines on them to my cousin Timothy Greene of Nashville, Tennessee." If you have some specific bequests list them in the Beneficiary Designation section. Please make this list brief by confining it to important (ie.,valuable) items. If you have a more extensive list of gifts, sometimes it is more practical to list these gifts in a separate document that can be executed at the same time as the will if your state law allows for this procedure.
Be sure you describe the item with as much specificity as possible. If you have any specific desires upon your death (e.g. to be cremated, to be buried at sea, etc.) those should be stated in the living will section of the questionnaire.
VI. WHAT IS A BENEFICIARY? A beneficiary is the person or persons who will inherit your estate when you die. The First Beneficiary (or Beneficiaries) will receive everything. The Second Beneficiary gets nothing unless all the people listed as First Beneficiaries die before you do. Usually, your spouse is listed as the First Beneficiary and your children are listed as your Second Beneficiaries. The same formula applies to Third Beneficiaries (ie, they receive nothing unless all those listed as Second Beneficiaries pre-decease you).
VII. PER STIRPES VS. PER CAPITA? There are two ways to leave your estate to your children; Per Stirpes and Per Capita. For example, if you are not survived by your spouse but you are survived by two children (named Alfa and Bravo), then Alfa and Bravo would each get 50% of your estate. Suppose Alfa died before you and left a child (named Alfa, Jr.). Where should Alfa's 50% of your estate go? To Bravo, or to Alfa, Jr.?
If you want Alfa's share to be inherited by Alfa's children then the share passes per stirpes (think of it as "down the stripe"). If you want Bravo to get the entire estate (thus shutting out Alfa's children), then the estate passes per capita. Per Capita distribution looks at the number of surviving heads (capitas) on the generational line.
Please indicate whether you desire Per Stirpes or Per Capita distribution in the beneficiary designation area. Feel free to discuss with the Legal Assistance Attorney the benefits of each scheme. If you do not indicate either, then we will assume you intend Per Stirpes distribution (as this is most common).
Examples of Per Stirpes v. Per Capita Distribution to Children