May 14

Wait, Wait, I Can’t Die — I Don’t Have A Will Yet! (Part One)

This is the first of a two-part series on the use of wills.

Have you awakened during the night and worried about the fact that you don’t have a will yet? If so, you are not alone. A study conducted a few years ago found that 55% of all adult Americans do not have a will. Apparently, misery still loves company.

Do I Really Need A Will?

Why do you even need to have a will? Contrary to what many people believe — that, if you don’t have a will, your property will automatically be transferred (“escheat”) at your death to the State (what sounds like it would probably be a good idea right now to help balance California’s upside down budget) — in most cases, your property will simply be transferred to your family members. But, it may not be the family members that you want to benefit from your property. Or it may not be in the percentages that you desire. Or maybe you don’t want everyone in your family to share in your estate, preferring instead to leave it to one or two special family members.

What Is A Will?

A will is simply a legally enforceable directive that you create which states how your property is to be distributed at the time of your death. You can specify that family members or friends will benefit from your property at your death. Or, you can forego giving anything to family or friends and give all of your estate to your church, the ASPCA (American Society for the Prevention of Cruelty to Animals), or some other charitable organization.

In your will, you can create a laundry list of specific bequests by which you parse out every pot and pan, or other piece of personal property, to a lengthy list of recipients. Or you can simply state that you leave your entire estate to one or more individuals. Or any combination of these two types of bequests. The types of provisions to bequeath your property are only limited by your imagination.

And a will can be more than merely a directive for the distribution of your property at death. It can be used to nominate someone to serve as the guardian of your underage children in the event that you should die before your children become adults. Or it can be used to state whether you want special burial arrangements or, perhaps, that you wish to be cremated.

A Perhaps Ill-Advised Use of Your Will

A will can even be used to diss that family member that you never had the courage to tell off during your lifetime. Really! Most good lawyers will usually discourage a client from using a will to do that, but it can certainly be done. Imagine something like this: “I intentionally fail to make any provision for my daughter, Lucy, for the reason that she has completely ignored me since she completed her college studies at my expense. So, Lucy, while your brother and sister each enjoy their millions of dollars in inheritance, think about all of the times that you could have visited me in the nursing home, but didn’t do so.”

A standard disinheritance clause does the same thing yet doesn’t make you look quite so petty after your death.

Can My Spouse And I Save Money and Create a Joint Will?

I can’t recall a single occasion in which I have recommended to a married couple that they create a joint will. I think that most of my professional colleagues would usually agree. Doing so can raise the suggestion that there was a contract made between the spouses to make specific reciprocal provisions in their wills which can lead to litigation if one spouse decides to later create a separate will with different provisions that don’t benefit the other spouse.

Separate wills also permit spouses to address the different issues or circumstances that they may each have, such as dealing with children from a prior marriage, or the distribution of a spouse’s separate property.

And simple wills are usually sufficiently inexpensive that there isn’t much of a cost savings if a couple were to create a joint will.

Who Handles Your Probate?

If you use a simple will to provide for the distribution of your estate, chances are good that your will will have to be probated. (The advantages of avoiding probate, and how to do it, will have to be the subject of a future article.) In your will, you can nominate the person whom you would like to manage the probate administration process on your behalf. That person is called an “executor”, or a “personal representative”. You can nominate your child, another family member, a friend, or, if you have a sizeable estate, you can nominate the trust department of your bank. And, if you fail to nominate anyone, the probate court can appoint anyone who seeks the appointment, or even the local county’s Public Administrator.

Do I Really Need An Attorney to Prepare My Will?

Does an attorney have to prepare my will? In a word, “no.” But, I also don’t recommend that you extract a decayed tooth by yourself or that you stitch up a deep wound on your own. Sometimes, it makes sense to consult with a professional and have him or her do the work for you.

Many stationery stores sell a preprinted will in which you fill in the blanks. Or you can buy a package of legal documents from one of O.J. Simpson’s criminal defense attorneys who advertises them on television. However, in California, if a will is not formally witnessed, there are strict rules about mixing handwritten provisions with preprinted language in a will. Is it worth it to risk having your will later be determined to be invalid just to save a few hundred dollars? Such a result would completely frustrate your testamentary intentions.

And an experienced estate planner will most likely provide you with options that you didn’t even know were available to you. In most cases, a professional will earn their keep.

Most everyone will benefit from having a will. They tend to discourage arguments between family members after you are gone and they make certain that your property will be given to just the right person(s) upon your death. Simple wills are usually very modestly priced (as compared with more sophisticated forms of estate plans). Do your family a favor and make an appointment today with an experienced estate planning attorney to discuss creating a personalized estate plan.

In the next installment, we will examine what types of issues you will need to consider before you pay a visit to your estate planning attorney to prepare your will.

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