TEN REASONS YOU NEED A LAST WILL AND TESTAMENT
In the legal world of estate planning, I often hear lawyers say there are two ways a person can die: testate or intestate. In order words, if you die with a Last Will and Testament, you die testate, and if you die without a Last Will and Testament, you die intestate. From my perspective, not as an estate planning attorney but as the former Probate Judge who handled probate cases day in and day out for twelve years, it is far better to die testate than it is to die intestate.
You may be married and own everything jointly with your spouse and think that you don’t need a Will. Or you may be single and want everything to pass to all of your children equally. Or you may believe that you don’t own enough property to actually need a Will. Whatever your situation, married, single, divorced, young, or old, rich or poor, your affairs after you die will be easier and more certain for those you leave behind if you die with a Will than if you die without a Will.
Below are ten good reasons you need a Will. There may be numerous reasons for you, personally, to have a Will or there may be just one very important reason that you need a Will. Whether your needs are simple and straight forward, or complex and complicated, or somewhere in between, by the very nature of probate administration, your estate will be more complicated, more time-consuming and more uncertain if you die without a Will than if die with a Will. Consider these reasons for dying testate rather than intestate:
1. You chose who gets your property. By far, this is the most important reason that you should have a Will. If you die without a Will, state law controls who will receive your property and how much they will receive. Most people don’t realize that if they die without a Will and have a surviving spouse and children, the spouse only receives one-half of their probate property and the children receive the other half. Since most people want to leave everything to their surviving spouse, especially if he or she is the only spouse they have ever had, if they don’t have a Will their spouse may end up owning the home, car, or investments with the children.
2. You chose who’s going to be in charge of your estate. Just a state law governs who receives your property if you die without a Will, state law also controls who will handle and be in charge of your estate if you die without a Will. State law gives a surviving spouse the right to handle a deceased spouse’s estate. Your spouse may or may not be up to this responsibility. If there is no spouse and more than one child, all of the children have an equal right to be in charge. If they can’t agree on who is going to handle things, a time-consuming, costly court proceeding may be necessary to settle the dispute. You can avoid the proceeding by naming who you want to handle your estate in your Will.
3. You chose how much of your estate each of your children or other beneficiaries will or will not receive. You may have a child that has special needs, a disability, or difficulty handling money. You can protect such a child and make special provisions for them in your Will. You may have a child that you are estranged from or who has an addiction problem, or a child who is successful and another who is struggling. Without a Will, all of your natural and adopted children share your estate equally, whether disabled, estranged, wealthy or needy. With a Will, you can divide your estate among your children in the manner you deem best.
4. You can name a legal guardian for minor children and name a testamentary guardian for a disabled spouse or adult child. If you have minor children, you can indicate in your Will your preference concerning who will be their legal guardian in the event both you and your spouse die while they are minors. If the person you choose is fit and proper and no other family member objects, your choice will likely be given custody of your minor children by the family court. If you have a disabled spouse or adult child, you can name a guardian in your Will to act on their behalf and make decisions for them. Such a provision in your Will can avoid a full guardianship proceeding in the probate court.
5. Without a Will that includes the authority to sell your real estate (your home, a condo, timeshare, or other real property) your estate representative will be required to petition the probate court for authority to sell your real property that passes through probate administration. If you die without a Will, your personal representative will not have the authority to sell your real property that is administered through probate without obtaining an order for sale from the probate court. In order to obtain such an order, a Summons and Petition must be filed with the court along with a filing fee, notice must be given to all interested persons and, unless all interested persons waive a hearing, a hearing must be held in the court before an order can be issued for the sale of your real property. The power to sell real property is routinely included in most Wills and having a Will that includes the power to sell will eliminate the need to obtain an order from the court to sell your real property.
6. You can eliminate a complicated court proceeding often necessary for the appointment of a conservator for a minor beneficiary by appointing someone in your Will to manage property left to a minor beneficiary. You may have minor children or minor grandchildren who will inherit some of your property when you die. Or, perhaps they might inherit some of your property if their parent (your child) dies before you pass away. Since the law presumes that minors cannot manage their property, if a minor child or minor grandchild inherits property exceeding $10,000 from your estate, then our laws require that someone be appointed by the probate court to manage the minor’s property. In your Will, however, you can name the person you want to mange any minor beneficiary’s property and eliminate the costly, time-consuming court proceeding that would otherwise be necessary.
7. You can direct that property for a child be held for their benefit beyond age 18 until they are older or wiser or give a child a right to receive certain property without actually giving them the property outright. Most parents can’t imagine giving a child a substantial sum of money, such as $10,000, $50,000 or more, on their 18th birthday. If you have a child or grandchild who inherits from you and you do not make provision in a Will (or trust) for the money or property to be managed beyond their 18th birthday, they will, by law, receive all of their inheritance at their 18th birthday. They can then do whatever they please with it. In your Will, you can provide for the property to be held in trust for their benefit and have it distributed or sprinkled out to them at different times and at different ages as they mature and gain the wisdom to appreciate and mange it themselves.
8. Without a Will naming who will manage your estate at your death (or the agreement of all of your heirs), the Personal Representative of your estate will most likely be required to post a surety bond in order to be appointed to handle your estate. By having a Will in which you name the person you want to handle your estate, such person will not be required to post a surety bond (unless an interested person demands, which very seldom happens). If you die without a Will, however, whoever is appointed by the court will be required to post a surety bond in order to serve as your personal representative unless all of your heirs agree in writing to waive the bond requirement. If they don’t all agree to waive the bond, then your representative will be required to post a fiduciary bond before he or she is appointed to manage your estate.
9. A Will often eliminates the need for formal hearings in the Probate Court. Many of the foregoing items are often included even in simple Wills. The inclusion of these provisions in many instances eliminates the need for formal hearings in the Probate Court. Any time a hearing is required in the Court, more time and expense is required to administer the estate. If the matter is contested and family members argue over these issues, they are further complicated. Even with an agreeable family, having a Will that contains these routine, standard provisions will eliminate procedural matters that oftentimes are required when there is no Will.
10. And finally, a Will is your last statement to your family and friends of your wishes and desires. That’s why it’s called a Last Will and Testament. It tells the world what you want, don’t want, intend and desire, and it will do these things for you when you are not here to do them yourself. Let it be a statement of your last desires and wishes, and let it do so in a straightforward, clear, unambiguous, and legally enforceable manner. Remember the old adage, “You get what you pay for?” Invest in a good Will prepared by a licensed attorney experienced in estate planning and let it be your last statement of your desires with regards to your property and affairs.
In conclusion, there are many different reasons that a person may need a Will. It may be that many of the foregoing reasons apply to you or that only one or two apply. Whatever your needs, any one of them is reason enough for you to die “testate” with a Will rather than “intestate” without a Will. Take the steps today to insure that your wishes are carried out after your death, that your family is not left wondering what you wanted; take the steps to make the administration of your estate easier, less costly and less cumbersome by having a Last will and Testament that will eliminate some of the procedures that are required when a person dies without a Will. If you do not currently have a Will, perhaps one of these reasons will move you to take action now.
(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds is the former Horry County Probate Judge and is the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC 29575. The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law. Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)