The Top 5 Reasons People Put Off Drawing Up A Will (And Why You Never Should)

Unfortunately, a large percentage of adults do not have a Will. The number ranges from 60% to 75% in the United States, depending on the 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 (or Trust).

Preparing a Will is a smart, compassionate, financially wise, and easy thing to do. 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.

Making a Will is not difficult or unduly expensive, and the reasons for not doing it pale compared to the benefits of getting it done. Below are 5 of the most common reasons I hear people decide to put off drawing up a Will, and why these reasons are often not valid.

5 Reasons People Mistakenly Believe They Do Not Need A Will

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 similar arrangements. That may not always be the best arrangement, 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 a backup for any assets that may fall through the cracks of other arrangements you make for disposition on death. Many times, only one beneficiary has been designated. If that person predeceases you, the asset will have to pass under the state laws of intestate inheritance if you do not have a Will. 

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 you have made to others are unenforceable. Likewise, even if your trusted family representative promises to follow wishes you have expressed to him or her, those promises are not binding.

2. I Am Too Young To Need A Will.

Younger people, particularly those with minor children, have as great or greater need for 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, as well as 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 one parent survives, he or she functions as the child's natural guardian and trustee. However, in the tragic event that both parents are killed in an accident, who takes over these roles is subject to court decision in a guardianship proceeding.

In a court-administered guardianship, the court will determine who serves in these roles. If you fail to make a Will, you will have no say in which of these persons is appointed guardian of your children or their estates. 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 if 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 further reason to include guardianship and trust provisions in your Will is that a court-governed guardianship remains in effect only until the child turns 18. Then the assets must be distributed to the child, 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 of any inheritance you leave to them in your Will. 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 may be making difficult decisions about:

• Who you want to administer your estate (an executor)
• Who you would want to be guardians for minor children and guardians of their estates, or trustees of trusts
• To what age you want children's trusts to continue
• Whether you have any specific conditions placed on specific beneficiaries receiving inheritance

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.

The standard provisions for a Will for a couple with children are that 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 Texas, this generally would cost around $750-$1,000 per person. You can learn more about what is included in the cost of a typical estate planning package in this blog.

This may sound like a good chunk of change. Compared to the added expense your survivors would 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 significantly less. You can pay a fee now for a Will, or your family will pay a whole lot later in fees and expenses for you not having done one.

You could try to prepare your own Will using Legal Zoom, similar online forms, or AI to save money, but they don't explain the choices and ramifications of those choices adequately. You may create an even bigger mess by DIY preparation of a Will without counsel to guide you on what pitfalls might exist using generic forms. Your heirs can end up spending far more straightening out the mess after you 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.

True, state law will govern how your property is distributed if you don't have a Will, but it is according to a strict statutory outline. The distribution cannot be contested or altered. 

Many people have no idea what state law says about the 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 those with overbearing spouses, the issues can become even more complicated. 

In Texas, a surviving spouse keeps 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 illegitimate children 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. The law depends on whether it is real property or personal property. Most people would not be happy with all of the provisions for the 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. 

Review these charts for a breakdown of how community property and separate property pass under intestate law in Texas.

Don't Put Off Drawing Up A Will 

While setting aside the time and money to draw up a Will may seem overwhelming, in many cases, the process is far less stressful and expensive than you might think. 

When you consider the fact that drawing up a Will can save your family substantial money, heartache, and fighting after you pass, it is well worth the cost. As always, you will be much better off meeting with a trusted legal professional to draw up your Will rather than choosing an online DIY or AI option.

If you live in the Texas Panhandle area and would like to discuss your estate planning, please reach out to Adair M. Buckner to schedule a free* initial consultation.

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* (The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.