Preparing a will is a smart, compassionate, financially-wise, and easy thing to do. So, stop making excuses, and do it! Anyone who has been through settling an estate for a loved one who failed to make a will can attest to how much they would have preferred the alternative.
Unfortunately, a large percentage of adults do not have a will. It runs 60-75%, depending on what survey you read. This is tragic.
Almost everyone should have a will, not just the really wealthy or the elderly. If you own real estate, have minor children, or don’t want state inheritance law to govern how your property will be distributed on your death, you absolutely should have a will. Making a will is not difficult or unduly expensive, and reasons for not doing it pale compared to the benefits of getting it done.
1. I Don't Really Need A Will To Distribute My Assets.
You probably do need one! Many assets can and should be disposed of by beneficiary or payable on death designations, joint tenancy with right of survivorship ownership, or like arrangements. That may not always be the best arrangement during your lifetime, however, especially for real estate, or your designations may fail to keep up with changes in family structure or asset ownership and leave gaps at your death.
It is best to have a will at least as back-up for any assets that have fallen through the cracks of other arrangements you make for disposition on death. The expense, time, and court involvement alone caused by failing to prepare a will to dispose of all your property far outweigh the expense and time required to do it while you can.
If you want specific property to go to specific people, the only way to be sure this happens on your death is to provide for it in a will. Verbal promises made to you that your wishes will be followed can and often will be ignored on your death.
2. I Am Too Young To Need A Will.
Younger people, particularly those with minor children, have as great or greater need to have a will as older folks do. One of the most important functions a will serves is to provide for guardians of the person (actual care and custody) and of the estate of minor children, and to set up trusts to hold and administer any assets they inherit until such age as you determine they would be old enough to manage them on their own.
If you don’t do this, a court-administered guardianship will have to be opened, and the court will determine who serves in these roles. You will have no say in which of these persons is appointed guardian of your children or their estates if you failed to make a will. It will be up to the court to pick from a list of eligible persons. Families can get into ugly contests over guardianships that divide them and destroy the family forever after.
Court-administered guardianships should be avoided it at all possible. Meticulous yearly accountings have to be done for money and property coming in, going out, and remaining on hand, and for the well-being of the child. Court approval has to be secured before buying and selling assets. Legal expenses in meeting all these requirements can be huge. A properly drawn will with trusts for minor beneficiaries until they reach a responsible age can avoid almost all of this hassle and expense.
A court-governed guardianship remains in effect until the child turns 18, but then the assets must be distributed to the child at age 18, whether that is what you would have wanted or not. We all know that not all 18-year-olds are ready to be in charge of their own financial destiny. With a testamentary trust (one set up in your will), you can determine at what age the child receives outright distribution. You can also specify that distributions made for education are dependent on obtaining certain grades, attendance, remaining drug-free, and the like.
3. Preparing A Will Is Too Complicated.
Getting a will done can be and usually is easy. Most attorneys have questionnaires or forms you can fill out to address the decisions you need to make in preparing a will.
The hardest part about filling them out is making what may be some difficult decisions about who you want to administer your estate (an executor), who you would want to be guardians for minor children or guardians or their estates or trustees of trusts, to what age you want children’s trusts to continue, and whether you have any specific desires about inheritance to go to specific beneficiaries, charities, or the like. These are decisions that it is much better for you to spend a little time contemplating and making your desires known about in your will, while you are alive, than to leave to your survivors to seek a chance resolution by a court.
Usually, one or two fairly short visits with an attorney are all that are needed to plan and execute your will and other estate planning documents.
4. Preparing A Will Is Too Expensive.
A will, unless it is more complicated that the standard situation for a couple with children, in which all property is left to a surviving spouse, and if none, to the children, with a contingent trust for minor children to a certain age, in this geographic area, generally would cost around $500-$750 per person. This may sound like a good chunk of change, but compared to the added expense your survivors will incur if a court-governed administration or other court proceeding has to be opened to distribute your assets, the cost of getting a will prepared is a quarter or less of that additional cost. You can pay some now for a will, or pay a whole lot later for not having done one.
You could try to prepare your own will using Legal Zoom or similar online forms to save money, but they don't explain the choices and ramifications of those choices adequately. You can create an even bigger mess by filling in the blanks in the forms without counsel to guide you on what those pitfalls might be. Your heirs can end up spending far more straightening out the mess after your are gone than you might have saved by not going to an attorney to start with.
5. State Law Will Take Care Of My Property.
State law will govern how your property is distributed according to a strict statutory outline. The distribution cannot be contested or altered. Many people have no idea what state law says about distribution of their property if they die without a will (intestate). With blended families, family members with different or special needs, family members with addictions or overbearing spouses, the issues can become even more complicated. In Texas, a surviving spouse keeps his or her one-half of the community property, but the decedent’s other half may or may not go to the surviving spouse. That one-half will go to children from a prior marriage (or even those born outside the current marriage), if there are any. This can cause serious family problems.
Separate property (what you receive by gift or inheritance generally) has even more complicated rules for distribution on death where there is no will, and depends on whether it is real property or personal property. Most people would not be happy with all of the provisions for intestate distribution of their property.
In addition, your survivors may not receive anything without a lot of expense, delay, and court involvement to get it, if you do not have a will.