Legacy Planning – The Pivotal Role Of Wills In The Creation, Protection And Distribution Of Your Estate

December 1, 2023


California Estate Planning: The Importance of Residuary Clauses in Wills and Trusts


Legacy Planning stands as an indispensable compass that navigates the complexities of estate management for the prosperity of the future generations. Within this strategic framework, Estate Creation, Estate Protection and Estate Distribution emerge as the fundamental pillars, each playing a distinct role in shaping a comprehensive and enduring legacy; and binding these three fundamental pillars Legacy Planning together is the last will and testament of the individual (the “Will”).

To the casual observer, the Will serves only a single purpose of dictating how assets are to be distributed to the beneficiaries at the Estate Distribution stage. While it is true that a key role of the Will is indeed for the aforementioned purpose, however, one cannot ignore the overarching effects of the Will and its influence on all three pillars of Legacy Planning.

This month’s FLP Article will touch upon each pillar of Legacy Planning and explore the pivotal role of the Will in each pillar with corresponding examples, hence shedding further light on the importance of having a well-drafted Will as part of your legacy plan.

Estate Creation:

Estate Creation involves the strategic accumulation and preservation of wealth during an individual’s lifetime, with the goal of establishing a lasting legacy for future generations. This process involves thoughtful planning to maximise the growth and preservation of financial resources, real estate, business and other valuable assets.

The process of writing the Will necessitates considerations towards the investment strategies in Estate Creation. A common example is when testators seek to equalize the assets to be distributed to their beneficiaries and upon realising the unequal value of assets, then decide to take on further legacy investments that would meet their distribution objectives in the Will.

It should be noted as well that one key aspect of Estate Creation is also to ensure that the existing assets are preserved and managed properly to ensure that the estate continues to grow and hence able to take on more wealth-generating activities for future generations.  Wills can be used to provide clear instructions for business succession, allocating new resources for new ventures, and establishing trusts for long-term wealth preservation. For example, a Will can include instructions on how investments should be managed and distributed among heirs, guiding them on strategies to preserve and potentially grow the value of these assets.

While the Will itself does not directly contribute to financial growth, its role in ensuring a smooth transition, preserving valuable assets, and providing strategic guidance for business and investment management indirectly supports the ongoing growth of the estate. The thoughtful provisions within the Will serve as a roadmap for heirs, enabling them to build upon the foundation laid during the estate creation phase.

Estate Protection:

Estate Protection is an important pillar of legacy planning that involves implementing strategies to safeguard an individual’s wealth and assets from potential risks, threats, and challenges. The goal of Estate Protection is to preserve the value of the estate and ensure its smooth transfer to intended beneficiaries. A well drafted Will is crucial in Estate Protection as it acts as a shield for the estate against unnecessary taxes, internal disputes arising from uncertainty (which could lead to the erosion of the estate), and the mismanagement of the Estate by incompetent individuals.

Wills that are well-drafted would map out clearly and systematically, how assets shall be distributed, accounting for all likely scenarios in order to avoid a situation where there could be room for disputes between the parties involved in the probate hence, protecting the estate from erosion caused by such internal disputes. Further, with the help of an experience estate lawyer, the Will should be drafted such that it is legally sound and fully enforceable, ensuring overall protection and certainty to the estate.

Wills also play a crucial role in tax planning to mitigate potential tax liabilities. Along with a tax consultant and estate planning lawyer, a testator could incorporate specific provisions and bequeath his/her assets in such a way that the beneficiaries still enjoy the full value of the estate and are not subjected to any further unnecessary duties, reducing the erosion of the estate caused by taxes.

Provision in the Will can also help to prevent or reduce the risk of the mismanagement of the assets as it allows the testator to appoint the suitable Trustee and the Executor of the estate. A clear example would be a situation where the lack of a Will results in the intestacy laws of the land determining the trustee of the estate and, in most cases, such determination is not based on the abilities and merits of the individual but purely on the relationship of that individual with that of the testator. This poses a huge risk to the estate as there is minimal guarantee on the competency and/or moral compass of the appointed individual which could result in the entire estate being mismanaged.

In essence, the Will acts as a strategic tool in Estate Protection by providing a legal framework for the thoughtful and protective distribution of assets. Its role extends beyond mere distribution, encompassing tax planning, business protection, and safeguards against potential legal challenges, contributing to the overall resilience and protection of the individual’s wealth and legacy.

Estate Distribution:

Estate Distribution is the process by which an individual’s assets and wealth are transferred to designated beneficiaries after their death. It is a critical component of Legacy Planning that ensures the orderly and fair transition of assets, guided by the individual’s intentions. The Will plays a central role in estate distribution, providing clear instructions and serving as the legal document that outlines the individual’s wishes, whilst avoiding any potential conflicts within the beneficiaries.

Having a Will and hence, the ability to decide how one’s estate is to be distributed, forms the cornerstone of the entire Legacy Planning process. With the freedom to dictate how one’s assets is to be distributed, testators can thereby make such plans and give the relevant directions in order to have their legacies best protected and preserved.

Having an official document such as a Will that had been properly drafted, will ensure that the testator’s intent is followed and gives the testator a certain level of freedom (as determined by the laws of the land) to decide how and what to allocate to the deserving beneficiary – which should be aligned with the testator’s wishes.

As mentioned earlier in this article, the absence of a Will could be catastrophic, resulting in the estate being thrown into a state of uncertainty – where due to the limitations of the intestacy laws, amongst others: assets could be potentially mismanaged by incompetent individuals; underserving beneficiaries could be given a larger than their fair share of the estate; and delays to the probate process caused by uncooperative parties, et cetera.

Having a Will provides the individual with the ability to express their wishes clearly, customize the distribution plan, and appoint trusted individuals to oversee the process. On the flipside, the absence of a Will leaves the estate subject to default legal frameworks, potentially leading to family conflicts and a less tailored distribution of assets.

 Our Final Thoughts

In summary, the role of a Will evolves across the three phases of estate planning. In estate creation, it acts as a forward-looking instrument, guiding the growth and development of assets. In estate protection, the Will becomes a defensive tool, helping to fortify the estate against external threats. Finally, in estate distribution, the Will transforms into a roadmap for the smooth and equitable transfer of assets, solidifying the individual’s legacy. Each phase underscores the adaptability and versatility of the Will as a key component in a holistic estate plan and hence, it is always advisable to seek the assistance of an experienced legal professional in the will drafting process.

How Can SMTP Assist you

Having an experienced hand guiding you through the intricacies of the law is always helpful regarding matters of legacy planning. Tapping on our combined decades of experience and very own Wealth Legacy Screening process, our lawyers will be able to assist you in a very systematic and detailed manner on your Family Legacy Planning journey, ensuring certainty and clarity in the management and distribution of your estate.

We also believe in close engagement with our clients, paying close attention to their individual facts and circumstances, and tailoring our advice and courses of action to cater to their specific needs and requirements. SMTP’s core philosophy is to provide bespoke legal advice based on our private clients’ specific needs and requirements, as cases always differ on their fine details. Our team of dedicated staff are ever eager and prepared to assist interested parties. Should you or your clients require any assistance in trust or real estate matters, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.