002 – Where There’s a Will, There’s a Way
Do you need to have a last will and testament? The first thing we are going to briefly cover is what is a last will and testament – or a “will”. A will is a legally enforceable written declaration of a person’s intended distribution of property at the time of their death. That’s a good law school definition of a will, but what is the actual purpose of a will? The primary purpose of a will is to allow individuals to distribute the property they own in any way they choose when they die. A will gives you the opportunity to designate who will receive your property as well as who will be in charge of gathering up your assets and working with the probate court to distribute your assets in accordance with the wishes you left in your will.
Now that we know a little more about what a last will and testament is, let’s answer the question of whether you need one. And to do that we should look at what would happen if you passed away without a will.
If you die without a will, the law in the state where you are domiciled will control how your assets are divided, who receives them, and who can serve as the executor or personal representative of your estate.
Many people assume that because they are married they don’t need a will. They believe their spouse will automatically inherit everything. In some cases that might be true. In other cases is can be a very expensive mistake. If you are married and have no children, then the intestate succession laws of most states will transfer all of your probate estate to your spouse. But, if you are married and have children, intestate succession laws will divide your estate among your living spouse and children. To some that might not sounds too bad, but consider this. What if you die unexpectedly – perhaps you are killed in a car accident – and your spouse and young children survive you. Your home will now be co-owned by your spouse and children. Children under eighteen cannot sign contracts or mortgages so your spouse will be stuck owning the home with the children and won’t be able to freely sell, refinance, or upgrade the property. Instead, your spouse must go through a court process to seek to have a conservatorship started for the children’s interest in the property and get court approval for any transaction that would affect the children’s interest in the property. By choosing not to have a will, you will cost your spouse thousands of dollars in legal fees down the road if this is your situation. This isn’t the only bad thing that can come from not having a will. You may want someone you really trust to serve as your personal representative to make sure things are carried out exactly like you want. If you do not nominate them in a will, there is a chance that someone else may have a higher priority to serve and they would be left out.
Beyond being able to determine exactly who will inherit from your estate and who will serve as personal representative, there are other benefits of having a will. You have the piece of mind that your loved ones will be taken care of. You can choose to leave people out of your will (except for spouses in many states). You can also determine how the taxes, bills and other debts you are leaving behind will be handled. And finally, you can grant your personal representative powers that would only otherwise be available with court approval. An example of such power would be to sell some of your property and give the proceeds of the sale to a beneficiary.
A lot of people hate to think about their own death. The idea of making a will seems to them that they are giving up and acknowledging that they are going to die. The truth is, we are all going to meet that fate someday. With a will you can have the confidence that you are in control of how your estate will be distributed. You may think you are good to go based on your current situation and how state law will distribute your estate if you were to die without a will. But you aren’t in control of your state’s laws. At any time, your state legislature could change those laws and drastically affect your estate plan. When you have a properly executed will, you can rest assured that you have an enforceable document that will distribute your estate the way you intend for it to be distributed.
Now, you want to know if you need to go see a lawyer and spend a small fortune. The truth is, it would be best to go see a lawyer about preparing your estate plan. A will is one part of a good estate plan, but a lawyer can help you identify other needs and determine if you should investigate other estate planning vehicles like a trust or powers of attorney. The cost of your will prepared by a lawyer will vary from state to state and whether you live in an urban or rural area. But a simple will should probably run you a couple hundred dollars. You can also investigate an online document service such as LegalZoom for your will. If you choose a service like LegalZoom, the document will probably be fine – as good as any document drafted by a lawyer in your state. What you must look out making sure it is properly executed. An improperly executed will could result in the invalidity of your will or have the effect of writing a desired beneficiary out of your will. So be sure you follow those directions carefully.