The question occasionally arises at a social event when someone introduces me as an attorney who helps people with their estate planning. “I don’t really need a will, do I?” Here are some thoughts on that question.
1. Children – If you and your wife should die before your children are of legal age, your children will need to have a guardian appointed for them. If you would like to tell the court who you think that should be, you can do so in your will. Otherwise, the court will make a decision without your input. If any of your children have special needs, it is critical that you include a special needs trust for any inheritance that child might receive so they don’t lose their government benefits.
2. Distribute your estate as you wish – If you don’t have a will when you die, much and possibly all of your estate will be distributed according to the laws of the state where you live. Those laws usually follow a traditional distribution for the traditional family. For example, everything to spouse if this is the first marriage and children of only this marriage. But if you have a non-traditional relationship (for example, multiple marriages, children of different wives, no marriage, etc.) the distribution under state law is likely to be far different than you desire. You can avoid this by preparing a will that contains your wishes.
3. Minimize family disputes – No amount of planning can guarantee someone won’t contest the distribution of your estate. But good advance planning can help minimize such disputes and help ensure the outcome will be as you desire. Even with good advance planning, the best way to avoid family disputes is to communicate your wishes to your family while you are still living. The more often your wishes are discussed with everyone involved, the better.
4. Reduce expenses – If you die without a will and probate of your estate is required, you are very likely to have to get approval of the probate court for every action needed to distribute your estate. That means multiple pleadings and hearings, which translates into fees and expenses. Much of this can be avoided with a properly prepared will.
These are general reasons for planning that apply to most everyone. Depending on your situation, there may be numerous other reasons why you should have a will. The wisest course for estate planning is to retain and follow the advice of an attorney licensed in your state of residence and experienced in estate planning and probate law.