If you die without a will, the disposition of your estate and the guardianship of your minor children will be determined by a court. Those decisions may not be handled as you would have wanted. Decide for yourself with a will.
Besides their hugely successful musical careers, what did Prince and Aretha Franklin have in common? Both left huge, multi million dollar estates…and no will. Their heirs were left to sort it all out in a messy, costly legal process.
You may or may not have a substantial estate, but having a will is fundamental to setting your own desires into place regarding the disposition of your financial assets, possessions and real estate. It also determines who will become guardians of minor children. Older adults may no longer have minor children, yet still want to divide assets in a particular way between adult children and grandchildren.
If you die without a will it is known as dying intestate, and in that situation a probate court will make those decisions that you did not spell out. The will is the most basic legal instrument that almost all people should have. Other instruments, in particular trusts, will be dealt with in a separate article.
Here are the key reasons you should have a will.
It names the executor of the estate
The executor is the person whom you want to manage the disposition of your estate after you die. Often it is a surviving adult child, or an adult sibling or other family member or close friend. This is a person you trust to distribute your assets as you desire, get any minor children established with the guardian you appointed and more. If you die without a will, the court will choose an executor according to the law of your state, and it may not be someone you would have wanted to fill this crucial role.
It determines who gets your assets
Upon a person’s death their estate goes through a process known as probate. It is supervised by a probate court and an attorney guides the executor of the estate in managing the process on behalf of the deceased and the beneficiaries. The executor, under the supervision of the court, must settle your legally obligated debts from the assets of the estate. What is left over is then distributed to heirs as the will spells out. If you die without a will, the court will divide the assets among relatives according to prescribed law in that state. Again, it may not be done in a way that you would have wanted.
It names a guardian for you minor children
If you still have minor children, in your will you name who you want to be guardian of them until they reach majority (adult) age. If you die without a will, the court will choose the guardian and again, it may not be someone you would have wanted.
It names the manager of the assets bequeathed to minor children
Assets passed to minor children must be managed until they reach majority age. The assets typically are placed in a trust or in Uniform Transfer to Minors Act account (UTMA).
It backs up trusts
Trusts are another estate planning vehicle that offer some key features, one of the biggest being that it bypasses lengthy, expensive probate. But there may be aspects of your estate and guardianship decisions not covered by a trust, and a will can cover those, completing the estate planning strategy.
It’s not hard to draft a will
Drafting a will is not difficult. You decide who you want to be your executor, how you want your assets divided and to whom and who you want to be guardian of any minor children. You can contact an attorney about drafting a will, however, there are online will kits available. The will needs to be signed in the presence of two witnesses, then kept in a lock safe box.
Bottom line: unless you have very minimal assets and no minor children, a will is necessary. For most people, having a will is a responsibility owed to those who stand to inherit and manage your estate when you die.