In social settings when the inevitable question arises “What do you do for a living?” and I respond “I am an attorney,” the conversation then usually goes one of two ways: Sometimes, although not very often, there is an awkward reaction and the conversation topic is abruptly changed, perhaps to something the other person feels more comfortable with, like the weather. More often though, the follow-up question is “What type of law do you practice?” When I explain that one of my areas of practice is estate planning, more often than not the response is “Oh, so you draft wills.” I am also frequently asked “Do I need a will?”
There is no one-size-fits-all answer to this question, but in the majority of circumstances the answer is “Yes.”
There is No Way Around It (Currently): We Are All Going to Die
While an individual is living and competent she can manage her affairs and do with her property what she wants. However, that individual, and every other individual, is one day going to die. After death there needs to be a mechanism to dispose of property and manage those remaining affairs. A will is one of those mechanisms. Simply defined, a will is a mechanism to control how a decedent’s (the person who has died) estate is administered. A key aspect to that administration is what happens to the decedents stuff. *A quick note on this “stuff.”* This can include valuable assets such as real property, stocks, and investment accounts, as well as items with little monetary value, but with great sentimental value, such as pictures, journals, and that grandfather clock you so fondly remember from your childhood. Another type of “stuff” that a will can affect is the guardianship of minor children of the decedent if there is no surviving parent.
Either You Choose, or the Government Will Choose for You
Perhaps the best way to convey the benefit of a will is the reality of what will happen to this precious stuff if you die without one. If one dies without a will (or in legal terms, if one dies “intestate”) then her stuff will be disposed of according to statute, i.e. how the Legislature dictates. Many find this proposition unacceptable based on principle alone. But the most troubling aspect of this scheme is that the individual loses control over what happens to her stuff when she dies. Often these things are the result of a life of hard work and planning, and most want to have control over what happens to this stuff when they pass.
Returning to the question above, if you do not care what happens to your “stuff” after you die, or you believe the Legislative scheme to dispose of that “stuff” is what you would direct in your will anyway, then you probably do not need a will. For the rest of us, preparing a will is advisable.
Some Benefits to Preparing a Will
Executing a will ensures that your stuff will go where you want when you die. A will also provides additional control over the administration of your estate. A will gives you the opportunity to choose who will handle your estate as you nominate a Personal Representative (also known as an Executor). A will gives you the opportunity to nominate a guardian for your minor children. A will gives you the opportunity to establish a testamentary trust (a trust created upon death) to provide for loved ones in a carefully prepared and thought out structure. A properly drafted will can also provide other benefits such as minimizing estate taxes. But the most basic benefit to a will is the control and flexibility it provides, and the peace that can come with knowing that in a time of loss and sorrow for your loved ones, your affairs are in order.
Consult a Professional
The complexity and cost of a will can range anywhere from a simple two-page document leaving everything to your spouse, to an expansive document that creates multiple trusts to provide for various beneficiaries in varying circumstances, all while avoiding tax consequences that would be incurred under intestacy. While many individuals often only need a “simple” will, even a small oversight in the preparation of a will can have devastating and unintended consequences.
A competent estate planning attorney can guide you through the planning process and prepare a will to provide you the control, flexibility, and peace of mind you deserve. Similarly, if you already have a will, but have experienced changes in life circumstances since its creation (e.g. divorce, bought or sold real property, changes in how you would like you stuff distributed, etc.) now is the time to have that will reviewed and revised. Whether you would like to meet about preparing your first will, or would like to meet to review your existing estate plan, our attorneys are available to provide a consultation. Contact us for a consultation and preparation or review of your estate plan.
