Do I Need A Will?
More than half of American adults don’t have a last will and testament or any type of estate plan. Many of them have been meaning to get around to estate planning, but have put it off for one reason or another. But many others simply don’t see the need for a will. They may not have a lot of assets, or may not have children, or simply think their family will know what to do when the time comes.
The truth is that you do need a will if you are an adult. If you don’t have much property or many heirs, your last will and testament can be simple and straightforward (and relatively inexpensive to make). The benefits of making a will almost always outweigh the cost. You need a will if any of the following apply to you.
You Want Certain People to Receive Certain Property
If you die without a will or estate plan, Michigan intestacy law will determine (roughly) how your assets will be distributed. Intestacy laws generally try to distribute property as most people would have, if they had had a will. For instance, if you have three adult children and no spouse, your children would each be entitled to one-third of your estate. That’s fine as far as it goes. But it may not go as far as you need it to.
Let’s say you want to leave your wedding ring to your eldest daughter and other cherished heirlooms to your other children. Having a will makes your wishes about those items clear, ensuring that they go to the people you intended to have them. Or you might have a family cottage that two of your children would regularly use and enjoy, but the third lives far away from and has no interest in. You could leave that child an equivalent amount of other property and leave the cottage to the children who use it. Without a will or other estate plan, there is no legally binding way to ensure that specific items go to the people you want to inherit it.
You Want Your Family Members to Be at Peace
You may not care which of your family members gets which items from your estate. But they may care deeply. The last thing you want is for your loved ones to be fighting over who gets grandma’s antique tea set or dad’s military medals. Many families have seen permanent rifts between formerly-close relatives due to fights over estate property, even items of little financial value. When significant amounts of money are involved, disputes may become even more bitter.
The easiest way to avoid fights over your intentions for your assets is to spell those intentions out in a will. Not only does having a will prevent disputes, but it relieves your family of the burden of having to try to discern your wishes while they are coping with grief over your loss.
Most people would be devastated to learn that issues with their estate caused the breakdown of family relationships. If you want to leave a legacy of peace, not conflict, make a will.
You Have Minor Children
If you have children under the age of 18, who will be responsible for them if their parents can no longer care for them? A will enables you to name a guardian and conservator for your children. A guardian makes personal decisions for someone with a legal incapacity (including minority); a conservator makes financial decisions. The guardian and conservator may be the same person or two different people.
Naming a guardian and conservator in your will can provide stability to your young children at a time when their world has been shaken and they desperately need security. Failing to name a guardian and conservator means that multiple family members may go to court to try to get custody of the children: aunts, uncles, and grandparents from both sides of the family. That type of conflict and instability isn’t good for anyone, especially the children. And the risk exists that the court might select a guardian and conservator for your children that you would find unsuitable. The bottom line is that if you have minor children, you simply must have a will.
You Want to Pick Who Will Be in Charge of Your Estate
Your personal representative is in charge of your estate, from gathering and securing your assets to paying estate taxes and debts to distributing assets to your heirs or beneficiaries. You can choose to name a personal representative (sometimes called an executor) in your will. If you don’t, the court will appoint someone to act in that role. The court usually appoints a relative, but it might be a person that you would not have chosen.
You Want Your Wishes About Your Funeral, Burial, or Cremation to Be Honored
If it is important to you to have a funeral in a specific religious tradition, or to be cremated, or to have a certain type of memorial or celebration of life, you can leave instructions in your will. Doing so is a formal way of stating your wishes that is more likely to be remembered and honored than a casual conversation.
You Want to Avoid “Laughing Heirs” and Other Unintended Consequences
As mentioned above, if you do not have a will or estate plan, your assets will be distributed according to state intestacy law to your nearest living relatives. In some cases, those relatives are so distantly related that you had no real connection to them. They are called “laughing heirs” because they reap the financial benefit of your death, but did not know you well enough to feel sad about your loss.
Even if you do have close relatives, dying without a will could mean that some of your property ends up in the hands of someone from whom you were estranged. For instance, if your nearest surviving relatives are your brother and sister, and you have not spoken to your sister in 20 years, the law does not treat her any differently than your brother. She would be entitled to half of your estate unless you had a will stating otherwise. One of the benefits of making a will is that it ensures your property goes only to the people and organizations that are important to you.
A last will and testament is an essential building block of most estate plans, but it may not be all you need. We are frequently asked, “Does a will avoid probate?” It does not, but there are alternatives to wills, like living trusts, that do.
If you are wondering what kind of lawyer you need for a will, you should work with an experienced estate planning attorney, especially one who is familiar with probate litigation. Attorneys who go to court in estate disputes know what can go wrong with a will, and draft wills to prevent confusion and challenges.
If you have further questions about whether you need a will, please contact Suzanne Fanning to schedule a consultation.