I’m amazed at the number of meetings I have with clients or soon to be clients that have never had a will drafted. For many, the most common excuses I hear are: “I didn’t get around to it”, “I’ve been too busy, or “I didn’t think I needed it because I don’t have a lot of money to pass on.”A will is something that you must take a little time to set up even if you didn’t have a lot of property or money to pass on. Let’s see if I can give you some incentive of why you would want to draft one immediately. I have also sought the council from a local estate attorney, Carey Gill of Barrett, Twomey, Broom & Hughes & Hoke, LLP
Without a Will
First, let’s understand what it means to die without a will. To die without a will, the legal term refers to dying “intestate”, which means that you didn’t have a will drafted before you died, or your will doesn’t meet the requirements of the state law that you’re residing. When dying without a will, almost everything is subject to probate. Gill adds, “While probate is usually the standard, you may also pass $100,000 with a small estate affidavit with or without a will”. Probate allows for clean titling of your assets to go directly to your next of kin. One potential downside of probate is that your matters are made public and anybody is allowed to make a claim against your property. Another way of looking at probate is that basically everything that you have left over, you are leaving subject to your state government’s laws and regulations to determine how you wanted your property distributed. So, if you are comfortable having the state determine how your assets get split up, then probate might be okay for you. That still doesn’t mean you shouldn’t have a will.
Essentially, a Will Allows You to Accomplish 3 Things:
- It allows you to give away your property that you own in your name the way that you want to.
- It allows you to nominate an executor to take care of all of your last affairs as far as paying bills, et cetera,
- It allows you to nominate a guardian for your minor children.
Of course, if you do not have a will, then none of these will be accomplished in the way that you will see fit and will be subject to your state laws and regulations.
How Will Your Property Be Distributed
If you die without a will, than your property is distributed pursuant to your state laws, and will most typically pass to your closest heirs. But who are your closest heirs? That depends greatly on your family situation, and the intestacy law covers pretty much every possibility. Gill adds, “If you die without a will, the statue provides that your estate (anything that is in your name only) passes ½ to your spouse and ½ to your children. Is that what your intent is? Maybe, or maybe not.” These are things to consider. Further complications are step-children (they are not considered children under statue) and children from a prior relationship (they are considered yours). These are all issues that can be resolved and simplified from having a will.
Take The Time
One last to ponder is the estate tax benefits that that a Will or a Trust can provide. “So many times people tell me “I don’t have an Estate, why do I need an Estate Plan?”. It is unfortunate”, says Gill. Seeking some information on the basics of a Will and Estate Planning can be a huge comfort for you and your family.