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I am married with 2 grown children. I'd like do my own will and/or trust without an attorney that eventually leaves everything equally to my 2 children when the both of us have passed. We currently have a home in Palm Beach County FL that is not paid off but may be in the next 10 years, no other debt, and an IRA below the inheritance tax threshold. Can we name both children as co-executors? Can they be the witnesses?

  • Why two executors? Do you not trust them to act in each other's best interest? – D Stanley Apr 28 '17 at 14:10
  • Yes we trust our children but picking one over the other for this is awkward. – jacknad Apr 29 '17 at 13:11
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    Having co-executors is more trouble for your children. Just pick one. Flip a coin if you trust them equally. You'll be dead and will be doing them a favor by eliminating a lot of frustration from all the joint decisions. Speaking from experience. – Rocky Apr 29 '17 at 15:06
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    Oh, and using a good attorney will help you avoid similar pitfalls. You may think co-executors is a wonderful, fair idea, but the attorney will educate on the ramifications. Estate planning is chock-full of gotchas. Use a lawyer! – Rocky Apr 29 '17 at 15:10
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Can we name both children as co-executors?

Yes but that means that they both have to act together to make any decisions, which may sound good but there's often a lot of small decisions that have to be made. They both have to sign any paperwork, sign checks, may need to appear in court, etc. What if they end up living in different parts of the country? It's possible but not ideal.

I'd like do my own will and/or trust without an attorney that eventually leaves everything equally to my 2 children when the both of us have passed.

I would highly advise against that if there are any complexities at all. Estate planning can be very complicated and can be a nightmare if not done properly.

Another key aspect is to make sure that both children are aware of what's in the will and what your wishes are (which you may not be able to enforce after death but hopefully they'll act in a manner that is honoring to your desires). Since you appear to be dividing everything equally this shouldn't be an awkward conversation, but it can't hurt.

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    It's certainly a good point about DIY wills, sadly there are many nightmare stories from people who had wills prepared by professionals too. With the low-complexity of the OP's situation, a fairly boilerplate will doesn't seem problematic, another good option is to use a boilerplate and have it reviewed by an attorney, cheaper than having them prepare it. – Hart CO Apr 28 '17 at 14:54
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Can we name both children as co-executors?

Yes, you can name both children as co-executors.

Can they be the witnesses?

Maybe, in most states Witnesses must be not be beneficiaries of your estate (In my view it's a good idea to have disinterested witnesses even if the state doesn't require it). It is also helpful if they are people likely to be reachable after your death in case the probate court needs to contact them.

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Yes, you can assign co-executors.

In my opinion, even though wills feel boiler-plate, it's worth the $250-$500 to use an attorney.

Keep in mind, an IRA or 401(k) should both have beneficiaries in place on the account. This functions as a "poor man's trust" even if it totals millions of dollars. The beneficiary form takes priority over any will, to the point where I warn people who divorce that they need to keep this in mind. The ex-spouse may be on that form, and the custodian isn't just going to ignore the form because a new spouse shows up with a death certificate and will.

I'd highly recommend that the will state the house be sold and proceeds divided. This will help (but not guarantee) that there's no issue if one child wants the house but has no funds to buy the other half. I don't know the rest of your situation, but keep this in mind.

Last. Whatever you do, do not 'quit claim' the house to the children as you get older. Your cost basis will follow and when they go to sell the house, they lose the ability to step up the basis, and a large tax bill will follow. This is a capital gain, independent of any talk of the estate tax going away. I say this from experience. My grandparents bought a house in the 40's. Quitclaimed to my father, who put it in my mom's name before he died. She then transferred to my sister and later, died. Now, sis had a trail of people dying, but no step up in basis. She has a $600K house she can't afford to maintain, and will downsize. But, the basis is $4000. Any updates were never documented. My advice was to put the house in a trust which would have protected it from creditors, but maintain the step up on mom's passing. A trust would have cost $2000 or so. The tax bill will be tens of thousands of dollars.

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