There is no easy answer to this question. Many people claim that they have no assets, or that all of their assets are held in joint tenancy, have beneficiaries listed on the investments or life insurance policies or are titled with pay on death “POD” or transfer on death “TOD” designations. The answer in those cases is that a will may not be necessary. However, that answer could change depending on changes in family circumstances.
Before determining that a will is not necessary, people need to be certain that they understand how they hold title to each of their assets. Assuming that a married couple’s assets are held in joint tenancy is dangerous. Under Nebraska law, the presumption is that title is held by parties as tenants in common, which means that when a tenant in common passes, the deceased owner’s interest passes to his or her estate. If a parcel of real estate is deeded to a husband and wife, the deed should recite “as joint tenants with right of survivorship and not as tenants in common.” Similar issues can arise with how bank and investment accounts are held. Many people, including some bankers and financial advisors, do not understand the difference between holding assets in joint tenancy or POD/TOD.
Each person should review their estate plan, whether a formal estate plan or simply the way in which assets are titled, to determine whether the plan meets their current intent. There are some triggering events listed below that should lead a person to consider whether a will or some other estate planning device may be appropriate. Some issues include the following, which will be covered in later blogs:
• What happens if I don’t have a will?
• Death of the first joint tenant
• The special needs child
• The “prodigal child”
• The spendthrift beneficiary
• Divorce
• Blended families
• Charitable gifts
I am licensed to practice in Nebraska and my advice is based on Nebraska law. If you live in a state other than Nebraska, you should consult a lawyer licensed in your state of residence.