Most Americans do not have a simple will as part of their estate plan. You might believe that a will is only for the rich and famous, and not the average person who has a far smaller net worth. On the other hand, you may think that a will is entirely unnecessary since you have a trust, jointly owned property, or have named beneficiaries on your insurance.
So, do you really need a will? The short answer to this question is “yes.”
In fact, everyone who owns anything - no matter how little value it may seem to have - should have a will. This is because a will puts you in charge of directing others on your wishes and distribution of assets upon your death. Without a will or other estate plan - referred to as intestacy - you have no control and your state’s rules determine who gets what after your death. Even if you have a trust, jointly owned property, or have named beneficiaries on your insurance, a will is an important, even as just a “backup” plan.
As a practical matter, the simpler your affairs are - typically, the fewer assets you own - the less complicated your will and overall estate plan is going to be. Surprisingly to most, it does not take much to complicate your estate. For example, if you have minor children your will must name a guardian for those children in the event of your death. Likewise, if you have a relative who is disabled, elderly or without the financial sophistication to manage your assets after your death, a will allows you to name someone to watch over these assets for your loved ones in a special needs or supplemental needs trust. And, these are just two examples of the many things that can complicate your affairs and your estate plan.
Many people believe if they have made beneficiary designations on life insurance policies, property deeds or retirement accounts that a will is not necessary at all. While it is true that those particular designations will ensure the right people you elected will receive benefits or inherit those assets, the distribution stops there. If there are other assets that you own - such as a car, a china set, or jewelry to name a few - or if you would like to give part of your estate to a charitable organization, a will is essential to your estate planning needs.
Furthermore, when a person dies without a will (referred to as intestate), the estate goes into probate. Probate is a judicial proceeding by which the court decides the rightful heirs and distribution of assets of a deceased. Going through probate can be both more time consuming and expensive without a will than it is with a will. This is because your will can waive certain probate requirements (like having the executor post a bond or obtain judicial approval to have an estate sale). At the same time, probate without a will follows the governing state’s intestacy laws which may likely result in a less-than-perfect split of assets that not only may not be in line with the deceased’s wishes but may leave many surviving loved ones unhappy. Consequently, for many reasons the creation of a will can fill in gaps of property assignment or plug holes in beneficiary claims on life or other insurance policies.
Family dynamics also play a part in estate planning, something state intestacy laws do not account for. Many people have blended families. There may have been second or third marriages. Older couples may choose to cohabitate after a death or divorce and never legally get married. You may have to treat your children differently on current accounts due to distance, and without a will, those assets will not be distributed fairly.
It is important to note that a will can also include a no contest clause, reducing the likelihood that potential heirs from arguing over its contents, something that simply isn’t possible if you don’t make a will.
Creating a will as part of your estate plan is primarily about passing your wealth to your loved ones after you die since a will only “works” after it’s gone through the probate court process. It really is about giving you both independence and control of what happens to your assets after your death. Instead of leaving the distribution of your property to local intestacy laws, a will can put your wishes down on paper and direct a selected person to carry out your desires exactly as expressed. Look for our post next week to learn more about another, more comprehensive strategy, the revocable living trust. For more information about preparing your will and estate plan, contact an Omaha lawyer, Sioux Falls attorney, or Sioux City lawyer today!