Why everyone should have a will
“I’m not old enough to worry about a will,” said one of my clients recently.
Looking at him, you might agree, At 25, he is as healthy as the horses he shoes. As a Ferrier with his own business, he works hard and plays hard. Life is his oyster right now but if he dies, I reminded him, the state gets everything.
“No way,” he said, in utter disbelief.
But it is true. As a single man with no relatives and no will, the chances are quite high that the state would take everything. Fortunately, my client found religion and immediately did some estate planning, including creating a will. Unfortunately, most people will find every excuse in the book to avoid creating a will. Many individuals feel uncomfortable with the possibility of their own death or they take the attitude that when you’re dead, you’re dead, so why worry about it.
You may be surprised to know that most states are prepared for that and have effectively written a will for you. They are called statutes and are used to determine your heirs if you die “intestate” (without a valid will). Each state’s statutes are different and can have an enormous impact on your heirs, especially your children.
If you die without a will, for example, and have children under 18, the state will control who will care for them. Sure, siblings or grandparents are usually the go to choices as guardians, but not always. There are also many instances where a sister or brother may not agree with the court’s ruling. In which case, there ensues a long and costly custody battle with most of the emotional hardship born by your children.
It gets worse. Let’s say you have been diligently saving for your kids’ college education. Without a will, there is no guarantee that an appointed guardian will honor your wishes. They may simply use the money for your child’s support dismissing college as a frivolous expense or a luxury they cannot afford.
Probate is the term used for the long, arduous and expensive state court procedure that administers your estate. An uncle of yours dies in Florida and leaves a condo, but no will. As his nearest kin, you will need to hire a lawyer in state, spend the money, time and effort necessary to have the disposition of the condo adjudicated in the court system and hope that in the end the state rules in your favor.
You go through all those hoops only to find out a distant cousin disputes your right to inherit. At the same time you discover the condo’s mortgage is greater than its worth and the condo association doesn’t approve the one buyer who might take it off your hands. I think you get the point. Probate is a nightmare.
Many people have confused a revocable living trust with a will. They are two different legal documents, which serve different purposes. In a living trust, you transfer assets into the trust during your lifetime. When you die, those assets go directly to your beneficiaries and do not go through probate. It is a private document and is more difficult to be challenged.
In contrast, a will is a public document. It can be useful in combination with a living trust to ensure that any property that is not already listed in your living trust (such as furniture or antiques, or heirlooms) before death will be transferred to the trust at death. A will can also address the needs of your children by naming a guardian and spelling out the financial provisions for their care and education. A will can also accommodate your wishes and intentions clearly and at greater length than a trust.
Creating a will and/or a living trust is best done through an attorney. It may cost a couple hundred dollars but it is the best way overall to cover yourself and your family in the event of your death. I suggest if you haven’t done one yet, it’s about time you did.