By Lisa Lane McDevitt, Esquire on Monday, May 9, 2011
Let’s face it. No one wants to think about their death. As a result many people either procrastinate in drafting a will or they simply do not believe they need one. Everyone needs a will and here’s why. You need a will so property passes to the person you want it to; to protect your children; for tax planning reasons; to simply the transfer of property and children in time of grief; and finally to prevent leaving your loved ones with loose ends and difficulties. Probate (the process that occurs when you die without a will) can be very time consuming and expensive even if you just have a car and a bank account
What exactly is a will? – a will is a legal document that allows you to appoint a person(s)to carry out your wishes as you directed and it allows you the opportunity to nominate a guardian for your minor children.
No will means:
- Someone you do not want to have your assets can inherit your estate.
- A person you believe to be unfit may become the guardian of your child.
- If your widow remarries numerous problems can arise with your estate.
- If you and your spouse die at or near the same time your children may not receive your assets.
Probate means your ne’er-do-well brother of yours can inherit your estate.
If you die without a will there are several unintended consequences. First, the state controls your assets and determines who gets what. You won’t be able to leave specific items of property to a specific person. So that sentimental piano or guitar you promised your child would be sold. Family heirlooms may be sold and the proceeds will be divided among your heirs. If you die without a will, the state cannot give any of your assets to a non relative so that best friend, and your favorite charity or your church will receive nothing. If you die without a will, the court may appoint a lawyer to supervise the administration of your assets. Guess how that lawyer gets paid? Out of your estate. If the court allows a non attorney to administer your estate, the court will most likely require that person to post a bond to ensure s/he is responsibly managing the money the state grants to your underage children. Believe it or not, you also wouldn’t be able to disinherit an estranged parent, errant child or sibling whom you might wish to disinherit.
No will means, crazy Aunt Flo, who doesn’t appear crazy in court, may become the guardian of your child.
If you have children you absolutely, without question, need a will. Without one, the state determines who it feels is the appropriate guardian for your children. Any person with an interest in the child’s welfare may apply to be appointed as the guardian. If no one petitions the court for guardianship then the children will be given to a willing foster family. The state also determines which assets pass to your children. It can also order that your spouse make a yearly report of how s/he is managing the money the state granted to your underage children.
What if your widow remarries:
Something that is especially difficult to think about is the consequences of not having a will and your spouse remarries after your death. The new spouse may be entitled to an interest in the assets from your estate. In mixed marriages with children, a new spouse may become partners with step-children or possibly an ex-spouse in handling your estate. On the flip-side if you remarried and die without a will your children from previous relationships will likely have to share your estate with your new spouse.
What can happen if you and your spouse die at or the same time:
And finally, many couples don’t prepare a will if they own property together. Joint ownership, however, does not convey property to your children or other heirs when both of you die at or about the same time such as an automobile accident.
Because you failed to prepare a will, the court will substitute your judgment with its own and you are left completely out of the decision making as to who gets what.
Have an experienced wills, trusts and estate planning attorney draft a will for you so that you control the distribution of your assets and the care and maintenance of your loved ones, not the state.