No one wants to contemplate their own mortality, but it’s an unfortunate fact of life. And not planning for your eventual demise by preparing a will, especially as a parent, can end up putting your loved ones in a bind. If you die without a will, it can lead to conflict amongst your surviving loved ones as they try and figure out how best to divide up your personal belongings and finances.
“As a practicing attorney I have seen families fight over big assets like automobiles to small assets like a collection of supposedly rare books,” says David Reischer, Esq. an attorney and the CEO of LegalAdvice.com. “I have encountered squabbles over small items of sentimental value to large truly valuable items like rare baseball cards. Families seem to fight over anything and everything. Therefore, always remember — have the deceased execute a last will and testament prior to leaving this world, in order to determine his intent how to distribute any remaining items in the estate.”
There are other reasons to ensure that you have a last will in place, too. If you have dependents or whish to leave any part of your estate to someone outside the family, a will is especially important, says Andrew Jackson, an executive with IMC Financial Services. “Intestacy laws follow a process in regards to who benefits from your death, so if you have specific requests they won’t be carried out unless you write a will,” he says.
Additionally, dying without a will leaves your estate open to being divvied up in accordance with the intestacy laws of your state, which could leave your loved ones in a bind. For example, in some states, your spouse may only get half your estate, with the rest going to your parents. If the parents are dead, then that portion will go to your siblings. And, depending on the liquidity of the assets, your spouse could even find themselves evicted from his or her house in order to satisfy the division of the estate.
So it’s clear that a will is important. However, 60 percent of people, whether due to avoidance of considering their mortality or sheer laziness, still don’t bother to draw one up because the steps involved seem complex. But writing a will is essential. Experts recommend not attempting to do it yourself, but to secure the services of a probate or estate lawyer. Once you’ve done that, here are some other steps to keep in mind.
Don’t Put it Off
This bears repeating. Dying without a will leads the state to become involved with your estate and divide it up according to its own intestacy rules. However, everyone is different, and their rules might not apply to your lifestyle. For example, what if a portion of your estate is due to go to your brother, but you haven’t seen him in ten years? “Creating your will gives you the opportunity to override the rules of the state with your own rules that fit your own specific needs and values,” says Philip J. Ruce, an estate planning attorney and owner of Stone Arch Law Office in Minnesota. “If you don’t want a specific person to receive your money or belongings, make the decision now to do something about it before your state decides for you.”
Make a Plan for Every Scenario
When planning out your will, keep in mind all of the various scenarios and contingencies that can arise after you’re gone. “A well thought-out will includes when and where you want your assets to go,” says Ruce. “I’ve seen people receive $100,000 when they turned 18, and it was gone in two years. When you give someone money before they are ready, they don’t know what to do with it.” Be smart about how to distribute your assets, to whom they will be going, and when. You can create a plan to distribute your wealth at a sequence of ages to ensure that it’s handled responsibly.
Take Your Family Dynamic into Consideration
It’s essential to be very specific when drawing up a will, especially if family circumstances are unique. For example, says Ruce, “Children from previous marriages who are not legally adopted by a spouse may be disinherited. If you want to make sure they receive money or a special heirloom, you must create a will laying out the specific details.” Additionally, if you and your spouse are not legally married, your significant other could find himself or herself disinherited from your assets after you’re gone.
Don’t Forget to Name Your Children’s Guardian
It sounds obvious, but it’s an essential step. If you neglect to select a guardian for your children (in cases of either single parenthood or where both parents pass away), you could be putting them in a very bad situation “The state’s default rules will determine who gets your children,” says Ruce. “This process could result temporary foster care.”
Your will is an opportunity for you to decide who gets what down to the last dime and tchotchke. And the beauty is, you’re allowed to be as specific as you want. “If you have a prized vinyl collection, address who gets it in a will. If you want Johnny to get the Rolex, write it down in a will or it’s not enforceable,” Ruce says. “Some states allow you to include a written list of these personal items that you can attach to your will, allowing you to make changes whenever you want.”
Don’t Forget about Health Care
Start planning your will when you’re healthy so that, in the worst case scenario, you will have already been able to name a financial power of attorney and a health care agent. If you become too sick to make decisions yourself, you will need to find someone who can make those decisions for you. “If you don’t have these documents in place, there could be complex court proceedings,” says Ruce. “Having your plans laid out allows your wishes to be enforced.”
Understand The Rules for Minors
Minors are able to own property, but will have no control over it until they turn 18. “If a couple leaves property like a home to their minor child, the surviving spouse will have problems if they want to sell it,” says Philip J. Ruce, an state planning attorney and owner of Stone Arch Law Office in Minnesota. Similarly, if a child is named the beneficiary of a life insurance policy, IRA, or 401(k), those assets will go into a protected account. “Parents can create a trust that will allow access to the funds and keep the assets protected until the child is old enough to handle the money on their own.”
Don’t Do It Yourself
This point can’t be stressed enough. A lot of people looking to put together a will take the easy route and download a generic form online. This is the setup for disaster. As Ruce notes, if you have your roof replaced incorrectly, the first time it rains, you’re going to find out. Similarly, if your will is put together poorly, your family will suffer the fallout. “Generic forms found online are just that – generic. But, families are not generic. Find a licensed estate planning attorney to help you navigate what can be a complex process. The question most people ask is if a will is valid. But, there is much more to it. Does the will give the right stuff to the right people the right way at the right time. If any piece is left out, a will won’t do what you need it to do.”