Why You Need a Will & What To Do About It
Wills are one of those necessary items that people routinely procrastinate. They are simple to make, and inexpensive to get, but they are easily overlooked. They also force you to think about your own mortality, which is not fun. Yet they are extremely important if you are one of those who needs one.
If you are married, have children, or have any assets at all to leave to others upon your death, you need a will. And you need to get one now. This article will try to explain who really needs a will, why you should get one, and what you need to know in order to create one.
Who Really Needs a Will?
Chances are, if you are bothering to read this, you do. The easier question is who doesn’t need a will. If you are young, single, have no children, and have no assets, then chances are you do not need a will. If you are not young, are married, have children, and have any assets at all, then chances are you do need one. Obviously, most people probably fall into the second category.
What Can Happen If I Don’t Have a Will?
If you die without a will, the State will decide who gets your assets (and your children if you have them). What the state requires may not agree with your wishes. And regardless of what the law says today, it can be changed at any time. If you put your wishes into the form of a will, you can be assured they will be honored.
Having a will prevents any fighting among your children after you are gone. You probably think that would never happen. We can assure you that we have seen it before in the most unlikely of circumstances. If there is a dispute about your assets, your heirs will have to resolve it in a court proceeding. Such a fight can shatter your family, and should not be your legacy to your children. A very simple way to prevent this is to put your wishes in a will that covers everything so there is no room for argument when you are gone.
Having a will also gives you peace of mind. Nobody plans to pass away. You should rest securely knowing that if the unexpected happens, your loved ones will be cared for, and your worldly possessions will be distributed according to your wishes.
What Type of Will Do I Need?
There are simple wills, complex wills, and trusts. Which one you need depends on your general situation. If you contact us, we will tell you, free of charge, which type of estate planning document you need. You can also ask us any question you like. This article will provide some general guidelines and a brief explanation of each type.
A trust is a complex document designed to reduce or eliminate federal estate taxes. You will need to set up a legal entity (the trust) which will own all of your assets. You will be the trustee, meaning you control the assets just like you do now. You will designate alternate trustees for after your death. Your property will have to be retitled to the trust, and deeds will have to be filed. It is a long process, and you only need this if you have enough assets to qualify.
Unfortunately, Congress passed a law that changes the amount every year! Therefore, use this rule of thumb: If you have close to one million dollars (including retirement plans, life insurance benefits, and equity in your real property) contact us to see if you need a trust. Tell us how much you have (being sure to include those items I mention) and we can advise you properly.
A complex will does not include a trust, but is needed when you want to specifically distribute many items of real or personal property in the will itself, or if you have other unusual needs.
A “simple” will is appropriate for most people reading this article. This provides for distribution to your heirs (usually to a spouse, and then to a group of people – like your children – if the spouse dies before you), names a Personal Reprentative (also called an Executor), and can have a limited number of specific bequests. If you have minor children, this will can name the guardian, name a trustee for your assets, and provides an age at which your children can own the assets themselves.
What Information Do I Need To Make A Will?
First, you need to decide who will be your heirs. That is usually easy. Most people choose a primary heir (usually their spouse) and a secondary group (usually your children) to inherit in case the primary heir passes away before you.
Second, you should think about which of those heirs to appoint as a Personal Representative (or Executor). The Personal Representative is in charge of distributing the assets and going through the probate process. They do not need special legal knowledge, as they can always hire an attorney. But your Personal Representative should be a trustworthy person, who has a good dose of common sense. You can name someone other than an heir as Personal Representative, but most people do not.
Third, consider whether you need specific bequests. Many people have items of personal property that they want to leave to a certain heir. You can do that in a will. This is appropriate for things of value like a stamp collection, jewelry, or a valuable antique.
If you have small personal items of limited or sentimental value that you think you may like to go to certain people, you do not necessarily have to put them in your will. Your will usually calls for items to be distributed so the value is equal to all heirs. For these small personal items with sentimental value, you can simply put together a hand written list and give it to your Personal Representative. You can keep it folded with your will so it will be read at the same time. It can be changed later without a trip to the attorney. Beware, this list is not legally binding, but will most likely be followed if you trust your Personal Representative. If you cannot trust your Personal Representative to do this, you should consider choosing a different Personal Representative, or making specific bequests to assure they will be honored.
If you have minor children, you need to choose a guardian and a trustee. This can be the same person, but does not have to be. The guardian is the person who will have physical and legal custody of your children. You should carefully choose this person, and you should discuss it with them before writing them into your will.
You should try to choose one person as guardian, not a couple. The sad fact is that 50% of marriages end in divorce and you do not want your children to be the subject of someone else’s custody battle. Most people choose a family member. If so, name the actual blood relative and leave the spouse or significant other out. Feel free to blame your attorney if it causes a problem. We won’t mind.
Much of the same advice applies to the trustee, who is the person in control of your money. You will likely give your trustee absolute power to distribute your money to your children, so choose this person wisely as well. Most people make the guardian and trustee the same person. It is hard to be a guardian if you have no money to pay for things, or if you have to ask the trustee for money every time you need it for the children. Last, you will need to choose an age at which your children will own the property for themselves. The most popular ages are 18, 21 & 25.
You should consider choosing alternates for these individuals, in case they are unable to serve.
Do I Really Need a Lawyer For This?
No, but you are taking a risk. There are computer programs out there that will write a will for you. We do not recommend them, and not just because they are competition. Frankly, wills are not lucrative for any law firm. We keep them inexpensive and view them as a service to the community because so many people need them. They are also a great way for you to become familiar with our firm.
Your last instructions on this earth are too important to trust to some software writer. How can you be sure that will is valid in Maryland and covers everything? And these programs do not give you the most important part of getting a will – the advice that comes with it. The document itself is just the end result of the advice you should get from an experienced attorney.
Keep this in mind: if there are questions or problems about your will, you won’t be around to clarify it. That is why it is important to get it right. Attorneys tend to use forms with older style wording that have been used for a long time. Do you know why? These wills are “battle tested.” Others have used them successfully over decades and they have been tested repeatedly in Court after the maker has passed away. A will written by a software company in the last 10 - 15 years cannot say that.
What Should I Do Now?
If you need a will, please contact us today. If you like, most of the advice can be explained over the phone and the particulars (names, etc.) can be sent by email. Then you can make only one trip to the office to review it, ask any questions, make any changes, and execute it. We will also be happy to see you face to face at the beginning. It is up to you. Call us at your convenience, or use the contact form on this site and we will contact you.
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The information on this site is general legal information and should not be considered legal advice which pertains to your specific situation. Effective legal advice depends on understanding the unique facts of your particular situation, and applying the law to these facts. Please don’t think that reading this information makes you a lawyer. This information is no substitute for hiring an attorney.
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