Understanding the differences in estate planning documents can help you to get organized which can, in turn, help you cover all of your bases. Your wishes are probably complicated. That’s ok. Most people have complicated wishes that tend to change overtime.

If your wishes are different from what someone would expect, then you might want to think about providing some type of explanation as to why you are making some of the decisions that you are making. No place is that more important that with a will (i.e., the last will and testament). The law does have certain requirements, depending on the state you live in (or in the case of real estate the physical location of the real estate).

Most states have laws that require you to give some of your property to your spouse when you die. You must provide for minor children (under the age of 18), if there are any. Outside of that, the limitations on distributions of your property after you die are not really set in stone. Adult children can be left out of a will, but that may cause problems for the other surviving children. Bypassing the children all together and giving property straight to grandchildren might also cause some issues.

An explanation letter can help explain the contents of your will and may help fulfill your wishes. An explanation letter is not a legal document because it is created by you and is not notarized or witnessed. However, a court may (although it may not) look to the explanation letter to determine your state of mind when you created the will.

 In creating a will, you must be of sound mind at the time you create the will. A sound mind is a standard that requires that you know that you are creating a will and that you are giving property in that will. You don’t necessarily need to know every single item or its true value, but enough to know some basics. The standard can be fairly low, but leaving out people you have a relation with can be signs of an unsound mind.

A will is not valid until it has been approved by a probate court which only happens after your death. If you have people that are expected to get something out of your will (they personally do not need to have the expectation of getting anything from your will, but the relationship may require a consideration by the court, such as adult children who do not get anything from your will) you should strongly consider providing an explanation letter.

Even when a probate court does not admit the explanation letter, the person that the letter is addressed to may get some understanding as to why they did not get property from your estate.

The difference between and explanation letter and ethical will are important. An ethical will is not really a will at all. Just like the explanation letter, the ethical will is not a legal document. The ethical will is the place that you want to leave a personal message to the recipient. The ethical will can help the person deal with your loss, pass on family history, and/or provide the person with some of the knowledge you have learned over the years. The ethical will is not the place to go into long details about why you made will distributions the way that you did, that is done in the explanation letter.

The explanation letter becomes part of your estate after you die. It can be read in front of others or it can be kept private and given only to the recipient. It may be presented in court pending court approval. The explanation letter is given the executor and alternate executor with the instructions on what to do with it. It can be destroyed, given to the person, or read out loud and then disposed of by the executor.

Since the explanation letter is not a legal document and may never have legal force, there are no real rules that governing the explanation letter. You can create it in any format you wish. A letter is generally what is created.

The explanation letter can have a unique place in your estate plan and provide some much needed explanation to the reader. You should consider strongly creating an explanation letter if you make distributions in your will that may raise eyebrows.



This blog entry was written by Sanket Mistry.

Sanket Mistry, J.D., M.I.A.      Sanket Mistry is the founder and CEO of Peerless Legal and blogs regularly. He has written numerous books including, "25 Estate Planning Forms," "8 Living Trust Forms," "Simple Will Creator," "Give Through a Will & Living Trust," and "Guidance On Creating Your Own Will & Power of Attorney," and the bestselling books in the Legal Self-Help Guide series, "Will, Trust, & Power of Attorney Creator and Estate Records Organizer" and "Estate Planning in Plain-English." He earned his JD from the Walter F. George School of Law at Mercer University and is a member of the New York State Bar. He has worked, and volunteered, at a number of nonprofits, government agencies, and for-profit corporations. He also holds a BA in philosophy from Emory University and a MIA from Columbia University. He is an avid traveler and tennis player.