Why Do I Need a Will?
Wills are the most basic element of estate planning. A will is a legal document that explains how you want your property and assets distributed after your death. It allows you to say who you want to carry out your wishes and provides you with the opportunity to nominate a guardian for your minor children. If you have questions about whether or why you need a will, an experienced estate planning attorney can help.
State Intestacy Laws
When you die without a will, you die intestate. If you die intestate, the laws in the state where you live at the time of your death control the distribution of your assets. If you have property in more than one state, the laws of the state where the property is located will determine distribution. The state may appoint a lawyer to oversee the distribution of your estate and that lawyer will be paid out of your estate's assets. The state may even claim your property if you have no apparent heirs. If you do have heirs, they may be forced to pay sizable taxes in order to keep any of your property. The state also will appoint a person they feel is a suitable guardian for any minor children you may have left behind.
Because you have not expressed your wishes, the state will substitute its own judgment regarding the distribution of assets to the following people:
- Your spouse: Most states provide a certain share of the estate to the surviving spouse. This amount is usually taken off the top before any claims by creditors and other heirs are paid. Many states also give the surviving spouse an interest in any real estate owned by the decedent.
- Your children: If you have children, they also will receive a portion of your estate. The amount can depend on whether your spouse was also their biological parent, whether you have children from a previous marriage, whether your spouse is deceased and other factors. If you do not have a will, minor children could end up with a large sum of money. In these situations, the court normally will appoint a guardian to manage the money until your children reach 18.
- Your parents and siblings: If you are unmarried and have no children, your estate will go to your parent(s) or, if they have both died, to your brothers and sisters. Similarly, if you are married but have no children, a portion of your estate remaining after your spouse receives his or her share will go to your parents, or if they have both died, to your brothers and sisters.
Under state intestacy laws, none of your assets will go to anyone who is not related to you. You will not be able to leave any of your assets to charities, friends, your church, or any other organizations or persons dear to you. You will not be able to designate someone to care for your children. Without a will, you are left out of the decision-making process altogether.
Will Substitutes
Will substitutes are used to pass property outside of probate. Some individuals believe they can avoid probate and estate taxes by using will substitutes. Common will substitutes include:
- Gifts of assets, property or cash
- IRA or other pension plans with designated beneficiaries
- Life insurance policies
- Joint checking/savings accounts
- Jointly owned property with rights of survivorship
While these substitutes may pass some benefits to your named beneficiaries, they may not pass on all of your assets or they may not pass your assets as you intended. There are no real substitutes for a will drafted as the cornerstone of an estate plan.
Conclusion
A will created by an experienced wills and trusts attorney will help you make sure that you, not the state, control the distribution of your assets and the care and maintenance of those you love upon your death.
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