Taking the time to sit down with an attorney and draft a will is arguably one of the most important preemptive steps you can take for your family’s benefit; however, it’s also one of the most put off steps by adults of all ages. Whether you are young or old, married, divorced, remarried, or single, have children or no children, a will is the simplest means of providing legal protection of your assets on behalf of your surviving spouse, children, family, and others important to you. A will identifies how and by whom you want your estate handled after you have passed on. While everyone’s situation varies, here are ten of the many reasons to have a will:
1) You are able to direct how your estate will be distributed. A will is a legally-binding document that permits you, prior to your death, to determine how you want your estate to be handled upon your death. If you die without a will, the determination is made by state law and there is no guarantee that your intended desires will be carried out. Having a will helps minimize any family fights about your estate that may potentially arise. Your will directs who will handle your estate (naming your executor), where assets will go (who the beneficiaries of your estate are), and how the assets are to be handled (what manner of distribution). This is especially important if you have been married more than once and have children from a prior marriage.
2) You decide who will take care of your minor children. A will allows you to make an informed decision about who should take care of your minor children in the event you and the other parent of your children are no longer alive (Example, you and your spouse both lose your lives in the same car wreck or plane crash). Absent a will, the courts will have to get involved to choose your children’s guardians among either family members or a state-appointed guardian. Your will allows you to appoint the person (or persons) you and your spouse desire to raise your children in your absence or, better, allows you to make sure it is not someone you do not want to raise your children. Many times, it is not a family member that you would want to raise your children, because there may be specific issues (e.g., religious views, lifestyles, abusiveness, mental health issues, poor money management, etc.) within your own family that you find problematic for your children, so you want to be sure you have the ability to name a guardian/s who most closely adheres to or identifies with how you would raise your children – and that may likely be someone outside your family.
3) To avoid a lengthy probate process. Contrary to common belief, all estates must go through the probate process, with or without a will. Having a will, however, speeds up the probate process and informs the court how you would like your estate divided. Probate courts serve the purpose of administering your estate and when you die without a will (intestate), the court will decide how to divide your estate based on state laws, without any input from you, which can cause long, unnecessary delays.
4) Minimize estate taxes. Another reason to have a will is because it allows you to minimize your estate taxes. The value of what you give away to family members or charity will reduce the value of your estate when it is time to pay estate taxes.
5) You decide who will wind up the affairs of your estate. Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business establishments. Because executors play the biggest role in the administration of your estate, you will want to be sure to appoint someone who is honest, trustworthy, and organized, which is not always a close family member.
6) You can disinherit individuals who would otherwise stand to inherit. Yes, you may wish to disinherit individuals who may otherwise inherit your estate if you die intestate. Because wills specifically outline how you would like your estate distributed, absent a will, your estate may end up on the wrong hands or in the hands of someone you did not intend. Most states have certain limitations on the ability of one spouse to completely disinherit the other, but you have the ability, through a will, to direct that certain persons receive less than what the law would grant them, or nothing at all.
7) Make gifts and donations. The ability to make testamentary gifts is a good reason to have a will because it allows your legacy to live on and reflect your personal values and interests.You may give testamentary gifts to children, grandchildren, your church, a charitable organization, a school, or other groups. There are certain limitations on such gifts that you will need to be aware of.
8) Avoid potential legal challenges. If you die without a will, part or all of your estate may pass to someone you did not intend. For example (a difficult example), one case involved a woman whose husband had passed away leaving her with an estate worth over $700,000.00. The widow had two daughters who had walked out of her life years earlier and refused her opportunity to have contact with her grandchildren. The woman executed a will giving the bulk of her estate to charity and others! In her will, she left both daughters one dollar to avoid any potential argument from her daughters after her death that she might have unintentionally disinherited them! Had she not identified this in her will, the ungrateful and uncaring daughters would have, by law, inherited all of the estate.
9) Because you can change your mind if your life circumstances change. A good reason for having a will is that you can change it at any time during your life, so long as you have the capacity to do so. Life changes, such as births of children, deaths, divorce, and other life circumstances, can create situations where changing particular parts of your will becomes necessary. Even if you already have an existing will, you should have it reviewed by an attorney familiar with estate planning matters every 3-5 years to determine if it still meets your intentions and the needs of your family.
10) Because tomorrow is not a given. Procrastination and the unwillingness to accept that death is an inevitable part of life for everyone are common reasons for not getting a will done. Cost is also a common factor but not the real reason for putting it off. Regardless of your age, financial situation, or health, the realization that a will is necessary often comes too late, such as when an unexpected injury, illness or disability occurs. To avoid the added stress on families during an already emotional time, it would be wise to meet with a lawyer to help you draft and execute a basic estate plan as soon as possible. A good plan will include a will, a general durable power of attorney, and a medical directive (more on these documents in a later blog). It may seem like a few hundred dollars is a lot to pay for a few pieces of paper, but it is a lot cheaper than what it might cost your family if you fail to make the investment.
Think about it! Many people who choose to wait to the eleventh hour to do something often die at 10:59! Don't be that person!
If you would, please allow me the opportunity to meet with you, or you and your spouse, to discuss the will process and how you can give yourself some peace of mind about your future. The consultation is free. The information can be invaluable.
STEPHEN G. JUDY, ATTORNEY AT LAW, PLLC
540-642-0068 or 540-805-5239