Most lawyers would agree that is essential to have a will or trust. If you don’t have a written document stating who gets your property, it passes according to state law, which may not be what you want. If you don’t have a will and you are married, property will pass to your spouse. Since most property in a marriage is jointly owned, it passes to the joint owner automatically. If you are widowed or divorced, your property will pass to your children.
But if your spouse is from a second marriage, and stepchildren are involved, it gets sticky. You and your spouse may have separate property that you don’t want to give to each other or to your spouse’s children It also gets problematic not to have a will or a trust if you don’t want a child not to receive anything because you haven’t heard from them in years, if they are addicts, spendthrifts, are in jail or if they have a disability and receive public aid. An inheritance may make someone ineligible for public aid. If you have a partner and are not married, the person won’t get any property not jointly owned unless it is given in a will. If you have no children, then your property will pass to the nearest heir, which may be parents, siblings or grandparents.
But people sometimes don’t get around to making out a will. According to a Findlaw.com survey, which is a legal information website, nearly 60 % of American don’t have a will. Maybe they don’t want to think about it or assume that they don’t need one. It’s not a lot of fun to go through the process of making a will. It’s kind of like doing something mundane and boring like shopping for insurance. It’s work and it’s not pleasant to think about what happens after you die. Most people fear their own mortality even if they believe in an afterlife. It’s a great unknown. What if nothing exists once they die? What if they turn into dust and everyone forgets about them? Have a will written reminds a person of all these nasty fears. It’s easier not to have to think about one’s own death.
But then a friend or a relative dies and they experience what legal mess will ensue if no will exists. Relatives come out of the woodwork and demand part of the estate. A self appointed executor may set up camp in the decedent’s house, start selling property and pocket the money for himself. The estate may end up being tied up in court for years because no one can decide how the property should be divided. Situations like that remind a person that this could happen to their estate. Or they may decide to bury their head in the sand and hope the problem goes away without doing anything about it. Sometimes even lawyers do this. You would think that they know better, but they fall prey to the same trap.
Some people have a difficult time deciding what to do with their property. It’s easy to decide to give it to their spouse, but they can’t decide how to divide it among their children. If a child is rich, then they may not want to give as much to them as to a child who has less. Also a parent may fear that child’s spouse will force the child to give the spouse the property in a divorce. Once property is gifted to someone, the person making the gift has no control over it. A child may be immature and not be able to handle money.
Not everyone considers alternative choices if a child predeceases them. If a child dies, does their share go to their children or to the other siblings? Or maybe to someone else entirely?
If a person isn’t married or have a partner or children, then it is more difficult to choose where the property goes. Does it go to a charity, a relative, a friend or a niece? Who handles the estate?
Besides the property issues is the decision is who will be the person handling the estate, which is the person representative. If a person is married, the natural decision is the spouse, but not always. If a person has grown children, then they can be alternates. Not everyone is suited for the role, however. The personal representative has to act on behalf of the estate and must be responsible and trustworthy. Estate money is not the personal piggy bank of the personal representative. The personal representative has to pay the bills, file the tax forms, distribute money and sell property. If a person doesn’t have a suitable person to handle the estate, then a bank or a fiduciary may have to do it. It isn’t an easy decision.
So all the planning that goes into a will or trust can be hard work and involve tough decisions. But if you ignore it, it won’t go away. It’s better to deal with tough decisions now so that your heir won’t have to deal with a morass later.
This is for information only and is not intended to be legal advice and anyone with a specific legal issue should seek the advice of an attorney. It does not create an attorney client relationship.