Wills: I don't doubt that I need one, but please explain why

[Mean Mr. Mustard]

I'm married with two adult offspring. We own our home and have a modest amount in retirement savings.

How, exactly, does having a will benefit us?

Would the unthinkable happen, wouldn't the two kids automatically split the estate? Who on earth else could muster up any degree of entitlement beyond those two?

I know we should have one - and we're gonna fix that - I just want to understand what could go horribly wrong without a will.

Thanks.

ETA: I hope this is not considered seeking legal advice; please consider this a general question.

[fruitbat]

I would say the will is less important than the ancillary documents you would usually have drawn up at the same time. The will would dispose of personal property, so it could forestall arguments by making sure it is clear that 'so and so' gets the 'whosiwhatzit'. You don't have guardian issues with grown children, so that isn't an issue. The will is irrelevant unless you have run out of beneficiaries on your retirement savings.

What you do need is clear powers of attorney so you can act for your spouse in the event of incapacity and vice versa. Having health care powers of attorney and medical directives is also important. In short, I kind of agree with you that it isn't as vital as it would be for a couple with young children, but a good attorney would make sure you are protected in other ways as well.

[Canadjun]

I am (probably) not even in the same country as you, but I still think one issue applies almost universally. If you have a will then your executor will have less legal hassle than your administrator will if you die intestate. You know you only have two adult offspring and no other possible claims on your estate, and your adult offspring know that, but the courts don't know that. I am no lawyer anywhere, but isn't there some requirement for an administrator to demonstrate that there are no other potential claimants?

[ivn1188]

The answer depends on your state. Most states have a per stirpes or per capita scheme to distribute the assets in case of intestacy. In most states the probate will have to be announced to search for any other heirs, then the estate will be equitably divided amongst the heirs by the state. Any heirs that come forward will be required to prove they are actually heirs, which is fairly difficult. Basically, states have a "default will" in place, and they are usually the sort that split everything up evenly. Note that your brothers and sisters and parents also might be in line to receive a portion of the estate.

As far as the actual probate process goes, someone will generally have to have the court appoint an executor, who may or may not have to post a surety bond or take a fee from the estate. Having a properly drafted will can save some expense for the estate.

If your estate is small and you are certain there are no other heirs, and you are satisfied with the state's intestacy scheme, there isn't really a benefit. In that case, the will just makes sure your exact intentions are followed in case of an unforeseen circumstance, and can speed up probate and/or save some money.

If your estate is big enough to be taxed, you should move assets out through trusts, etc, to avoid having such a large estate. That generally requires a lawyer.

Also, you and your wife both need wills, and you should mirror them (assuming you're not trying anything special). The wills would be like "everything to wifey, then kids per stirpes" and "everything to hubs, then kids per stirpes".

So, for a small estate the question is if the state's default will is agreeable. A will provides assurance that your wishes will be followed, even if laws change. It really is highly state-specific, though.

[Triskadecamus]

You, of course, won't benefit at all, what with being dead, and all.

You family will be better served if your will is current, and registered in your county of residence, with a named executor. All the legal systems in place for those who die intestate are more interested in serving the needs of the community, and it's lawyers than in protecting the assets of widows and orphans.

Hand written wills, so long as they remain unique (you know, if you burn one before writing another) witnessed by someone not a beneficiary are fairly close to unbreakable in most US States. Oddly enough, hand printed wills, not in cursive script have been successfully challenged, simply because they do not enjoy the protection afforded to holographic wills, in some jurisdictions. (Just so you know how closely the law is aligned with protecting the actual intent of the person whose will it is.)

Tris

[DrDeth]

Real estate is a huge pain in the ass, even with a will. I suggest you seek legal or tax advice on this.

You should put the wife or even kids as your beneficiaries on your bank accts, IRA's etc.

[Campion]

The shorter answer is that you need to investigate how your state deals with intestacy (dying without a will). If a married person with adult children dies without a will, each state will have rules about how that person's estate is distributed. In some states, it will all go to the surviving spouse. In other states, part goes to the surviving spouse and the remainder to the children. So if you look at your state's rules, and they fit with what you want done, you don't need a will.

Probate, however, is another issue, and one that a will doesn't affect -- will or no, you'll go through probate unless you've set up trusts as ivn1188 says.

[Shagnasty]

You say 'split the estate' but how exactly does that happen? You probably aren't just living on a bed of money in the woods somewhere. If you have anything at all, it is best for everyone if you specify how it is to be divided in the event of your death. Believe it or not, I am sure you raised great kids but divisions of estate tend to bring out the most evil and vile human emotions and reactions possible. It is a classic story and happens very often. It could be a fight over a simple picture that more than one person has emotions attached to even though you may not know it. The only responsible thing to to is to make the decision yourself and not put on your heirs in a position to fight over it. Those conflicts can stew for years. I have seen it dozens of times across families of all types both rich and poor when the deceased person wasn't responsible enough to put everything in legal terms and, instead, decided to let anarchy and a battle of wills engage and it isn't always who you think it will be doing it.

[Polycarp]

The father of a friend was a prosperous antique dealer at the time of his death. He left a wife and three children, and his intent was that his estate be divided amont them in precisely the way the intestacy provisions of our state called for. So he didn't bother with a will.

With the connivance of her lawyer, his widow, appointed administrator, managed to love off (and consume most of) the estate for ten years, while two of the kids were in straitened circumstances and getting nothing from the estate. Those two understandably became estranged from their mother and from the third child, who thought it her obligation to stand by her mother against her brother and sister, even though she felt she was being cheated too. Eventually they forced distribution of what little was left, but at the cost of breaking up a family. Even today they're barely speakign to one another.

Anecdotal, of course, but an example of a good reason not to go with intestacy.

And even if you don't care, beyond fairness, what happens after you're gone, remember that those you love, and who love you, do. That old thing, that you and your son used to work on together when he was a kid? It's worth about $10 to a secondhand dealer. But the sentimental value of having it as a memento of you is, to borrow the MasterCard commercial line, priceless -- far more than the 42.8% of $10 he'd get if it was sold by the administrator in intestacy. Find out what the kids want when you go, and then write a list that bequeath each the things they want. (You know how to handle it when both girls want the same heirloom -- you learned that when they were 6 and 7 and fighting over pieces of cake.)

IANAL. But I am a student of humanity -- and I've seen crap happen because there was no will, or one that didn't take into account the reasonable wishes of the heirs. (My father was good with fine carpentry -- he built his grandmother, the one I've mentioned as born in 1841, a small decorative bookcase, back in the 1930s. We still have that bookcase -- I just set it up in our living room last night -- and it's a precious memento of family members gone for decades.

[Hello Again]

Also in the event there is no one alive to take your estate through your state's intestate scheme, it will go 100% to the government (or it lawyer talk it will "escheat to the State"). Most people would prefer that a charitable or educational institution be the inheritor of last resort. To arrange that, you need a will.

[ivn1188]

Originally Posted by Triskadecamus

Hand written wills, so long as they remain unique (you know, if you burn one before writing another) witnessed by someone not a beneficiary are fairly close to unbreakable in most US States. Oddly enough, hand printed wills, not in cursive script have been successfully challenged, simply because they do not enjoy the protection afforded to holographic wills, in some jurisdictions. (Just so you know how closely the law is aligned with protecting the actual intent of the person whose will it is.)

Holographic wills are only good in about half the states, and witnessed ones are almost always done poorly and ineffectively, with invalid witnesses or failure to subscribe or a host of other issues. If you are going to make a will, get a lawyer, period. Any other course of action is just foolish.

And I don't think the intestacy laws are in place to help lawyers, etc. They generally reflect what most people would do, or what the legislature thinks gives the best result for the decedents. Any probate process is susceptible to challenge and mismanagement, will or no, so that's not on point wrt intestacy v having a will.

Like I said, it's insurance that your wishes will be carried out, especially if you appoint an executor who you trust to follow your instructions. But legally, there is no real difference between you having a will that exactly follows the intestacy statute and simply being intestate, except that a will gives you more freedom to choose an administrator, and maybe cut some costs.

[ZenBeam]

I found this site that has calculators for each state to see how much your spouse and kids each get if you die intestate. I can't vouch for its accuracy.

[ZenBeam]

I only tried a couple states (MI and CA), but neither asked if the children were minors or adults. I would have thought that would matter.

My wife just mentioned that much of what we own is owned jointly, and that the calculator may only apply to assets that are mine, not ours.

[Northern Piper]

Here's a question to the OP that might help understand the need for a will.

You mention that you and your wife have modest retirement savings.

If you were to die tomorrow, survived by your wife, and under the laws of your state part of those modest retirement savings go right away to your children, would your wife still have enough to live on?

If the law of your jurisdiction provides for your children to have a share right away, that may be a concern.


Obviously, not intended as legal advice, since I don't know where you live or what the law of your state is - you should seek advice from a lawyer in your state that is knowledgeable in the area of wills & estates.

[Hari Seldon]

In Penna, at least when I was growing up, if you die intestate then your wife inherits only 1/3 of the estate and the kids get 1/3 each. Is that what you want? It wouldn't at all surprise me if this were near universal in common law states. My will (and my wife's is similar) specifies that if either of dies, the other gets 100% and when we both die, the kids (or heirs) will each inherit 1/3. You can find forms on the internet that will produce simple wills like that. Just fill them in, sign and notarize them and you are done. Strongly recommended. Of course, it might be better to get a lawyer's will, but this is better than dying intestate.

[md2000]

Another point... In some Canadian provinces, if you die intestate (sounds painful!) then the court appoints a government trustee. The Public Trustee automatically take a percent of your estate as fees for their service.

Also consider the problem where a divorce happened but the old will was not changed. I recall a case where one guy died where I worked; he was separated for 10 years and lviing with a different woman; he never changed his employer life insurance policy and his non-ex-wife got the lot, plus his employer pension; similarly, his adult kids came to demand the woman leave the house, plus they wanted to take his boat and trailer and haul it away... a general mess all around. The only bright spot was that the law considered the most recent common-law companion the one eligible to inherit his Canada Pension Plan entitlement.

If you die intestate but your wife does not - would her share (33% or 50% depending) be enough to live on? Could your kids even forgoe their legally mandated share, or would that be a gift to her from them and double-taxed? Is there special treatment for the family home in your jurisiction? Usually the surviving spouse is considered the tenant for life in the family home, even if the kids are entitled to a share; in other cases, the common house is automatically hers and exempt from the estate settlement.

Things can get complicated and depend on location, so serious (paid) legal advice is a good idea.

[Northern Piper]

Originally Posted by md2000

Another point... In some Canadian provinces, if you die intestate (sounds painful!) then the court appoints a government trustee. The Public Trustee automatically take a percent of your estate as fees for their service.

This is not accurate. The Public Trustee only acts if there is no-one else to administer the estate. Even once appointed, the Public Trustee can be removed from the role of administrator if a member of the family comes forward and is willing to assume the role of administrator.

See, for example, the web-site of the Public Trustee of Saskatchewan:

As Official Administrator it is the responsibility of the Public Guardian and Trustee to take possession of the deceased's personal and real property when it is brought to its attention that the executor or next-of-kin have not done so, for the purpose of preserving and protecting it. The Public Guardian and Trustee will have all the powers of an executor or administrator pending the grant of Letters Probate or Letters of Administration. The Public Guardian and Trustee can apply for grant of Letters of Administration 30 days after the death of a person, if no application for Letters Probate or Letters of Administration has been made.

...

Regardless, Letters of Administration granted to the Public Guardian and Trustee may be revoked at any time on the application of:

a. any executor applying for Letters Probate; or

b. any next of kin or any domiciliary executor or administrator of the estate applying for Letters of Administration.

See also:

Public Trustee of Alberta

Public Guardian and Trustee of British Columbia: Estate Services

Public Trustee of Manitoba

New Brunswick Public Trustee

Ontario Public Guardian and Trustee

[dracoi]

My mother died when I was 14 with no will. She and my father were in the process of separation, but had not finalized a divorce. I had two younger brothers at the time (12 and 6). This sounds something like your situation, right?

Well, here's what happened:

My mother's parents went nuts from grief. They got a lawyer and posthumously finalized the divorce. Then they sued to become executors of the estate (to "protect" us kids from our father). My father sued to become a co-executor (to "protect" us kids from our grandparents). The probate dragged on for years, racking up costs and pissing away the tiny inheritance we might have got (her total estate was less than $100,000 in net value, and $80,000 of that was tied up in the house we were living in).

At some point after one of my younger brothers turned 18 (this was 8 years into the probate) we hired our own lawyer at our own expense. We sued to remove my father and grandfather as executors, replaced them and then closed the estate. My father slapped a lien on our half of the house so that he could make us pay his legal expenses. Fortunately, our lawyer prevented our grandparents from doing the same.

So... my mother didn't really need a will, did she? I mean, it only cost $30,000 in legal bills and dozens of severed relationships. And let's not forget the sentimental things, like her novels in progress, that have been lost to me and are literally priceless as far as I'm concerned.

Go get a will. Even if you only want to pay $30 for some will-making software, just do it! Anything is better than nothing, and you never know what will happen.

[Spavined Gelding]

Originally Posted by dracoi

They got a lawyer and posthumously finalized the divorce.

A posthumous divorce? How do you do that? It seems to run afoul of the rule that there has to be a party in interest. Without a party in interest there is no case. Beyond that, the death of a party to the marriage would appear to terminate the marriage about as effectively and completely as it could be.

Something like this happens every once in a while. Typically one of the parties dies after the case is tried but before the decree is actually entered. More rarely one party (generally the husband) goes to the other’s house with a shotgun and blows his brains out in the front yard. That ‘ll show her. The alternative senecio, the one everyone in this business fears, is that the shotgun is turned on the spouse – so a murder rather than a suicide, frequently a murder and a suicide. In any event the divorce is moot, there is no marriage to dissolve and the survivor is the surviving spouse for all purposes..

This is why some lawyers ask the presiding judge to enter a decree of divorce right away with a supplemental decree entered later to adjudicate the substantive issues.

[dracoi]

Originally Posted by Spavined Gelding

A posthumous divorce? How do you do that? It seems to run afoul of the rule that there has to be a party in interest. Without a party in interest there is no case. Beyond that, the death of a party to the marriage would appear to terminate the marriage about as effectively and completely as it could be.

I don't really understand the legal maneuvers that made it possible. There were boxes and boxes of records for the first 8 years of the probate and I didn't read each one in detail. Even if I had, half of it was in legalese.

My brother and I basically went to a lawyer that we trusted and said "Whatever has to be done, we want this thing CLOSED." We signed what we needed to and showed up to court when we were asked to. I read over everything, but did not fully understand all of the maneuvering that was going on.

[Northern Piper]

could it be a reference to the division of matrimonial property? in some jurisdictions, that's a separate aspect from the divorce proceedings, and once the claim has been brought in the courts, I could see that it might survive the death of the spouse, depending on the law of the jurisdiction.

[ivn1188]

DO NOT download a form off the internet and get it notarized, or try a "do-it-yourself" kit, or similar things. They are almost never well-drafted or acceptable legally, and people invariably mess them up.

You are actually better off under intestacy should there be a dispute than you will be with one of those wills, even assuming they are validly executed under the laws of your state.

it's not going to cost you more than a grand or so unless you have some pretty tricky stuff going on. Think of it like plumbing -- you're probably ok with your current pipes, or you can call in the plumber to replace them. Trying to do it yourself means you're going to flood the living room, hook up the hot and cold backwards, and you'll probably end up electrocuting yourself.

[Campion]

Originally Posted by ivn1188

DO NOT download a form off the internet and get it notarized, or try a "do-it-yourself" kit, or similar things. They are almost never well-drafted or acceptable legally, and people invariably mess them up.

Unless you live in a state that provides statutory fill in the blank wills that are available, for free, online. Such as California, which publishes the always fascinating "Do I Need a Will?" and its sequels "Do I Need a Living Trust?" and "Do I Need Estate Planning?" California provides a free, simple will for residents. There may be other states that do the same.

You are actually better off under intestacy should there be a dispute than you will be with one of those wills, even assuming they are validly executed under the laws of your state.

I don't really understand the reasoning, but I do agree that it's better to have a legally valid will than a legally invalid will.

[Mean Mr. Mustard]

My mother died when I was 14 with no will. She and my father were in the process of separation, but had not finalized a divorce. I had two younger brothers at the time (12 and 6). This sounds something like your situation, right?

Uhhh, close. Except that no one has died. And we are not separating. And we have two kids, not three. And the two kids are adults. Otherwise, it's exactly like my situation.

This site offers wills for $20 and is championed by Dave Ramsey, the financial advice guru (for whatever that's worth). Any opinions on U.S. Legal Forms . com?

Thanks for all the input, everyone.

[Mona Lisa Simpson]

When I first tried to get a divorce 5 years ago the lawyer wouldn't touch my case (long story) but she went on and on about not letting me leave her office without doing a will and a POa to protect myself and my estate and especially my infant son in case something happened to me and my husband swooped in.

Im glad she did. Nothing has happened, but working with the seniors population has taught me a lot about weird things that can happen when Powers of Attorney, Living Wills and Wills are not updated.

[ivn1188]

Originally Posted by Mean Mr. Mustard

This site offers wills for $20 and is championed by Dave Ramsey, the financial advice guru (for whatever that's worth). Any opinions on U.S. Legal Forms . com?

Yes.

In my professional opinion, it's worthless.

The only specific legal advice I will give you is that you need to consult an attorney who does wills in your jurisdiction. This is not an area you should skimp on, and it's not an area where you can figure out how to do it on your own.

Furthermore, an attorney, if the pooch is screwed, will have insurance. You (or more precisely, your heirs) do not.

Hire an attorney to do your will, and have them do powers of attorney and all the other stuff. Don't be yet another example of some cheapskate who didn't want to pay a lawyer and ended up in a casebook as an example.

[Northern Piper]

There was a famous English case about a century ago, where a fellow got a pre-printed will form, filled it in, and that was that. When he died, litigation resulted.

The judge on the case outlined the facts in his judgment, and stated something along the lines of: "So the deceased filled in his will form, thinking that he had done a good day's work. And so he had - for the legal profession."

[Enright3]

Where I live, and in many other US States, there is no such thing as 'automatically split[ting] the estate.'

The automatic is that if you die w/o a will, your estate goes to probate. Then it's nothing but red tape.

[MLS]

Again, it depends where you are. In NJ, you can avoid probate entirely by having a "self-proving" will.

Someone earlier pointed out that "divide everything evenly" often does not work out the way you intended. A will designates a specific person to execute it and decide what "evenly" means. Does it mean sell every single item that remains and split up the results? What happens when both heirs want the dining room set, or the crystal chandeliers, whatever?

It didn't happen in my family because the folks didn't leave much that was other than sentimental in value and my sister and I had no conflicts over anything. She had always wanted a particular furniture item, for example, and I didn't really care. But there are horror stories of siblings who never want to speak to each other again because one of them just knew dad or mom would have wanted them to have some item or other.

When my dad died I had more cars than I needed, really, so I had no problem with my sister's daughter getting his. But suppose I'd had a daughter who also really needed a car? Much, much better to have it all sorted out ahead of time.

Finally, if you do nothing else be absolutely sure that somebody has a durable power of attorney for heath care, and that you have statement of preferences in medical matters if you are unable to speak for yourself. When my father was in the hospital during his terminal illness, there was more than one time where it seemed to my sister and me that he was in more pain than was necessary and the staff on duty said, oh. no, we can't give more of that, it would slow down his heart rate or some such thing. Being able to point to the "living will" and the durable power of attorney for health care enabled us to insist that he be allowed to be comfortable.

[Ferret Herder]

Consider also - if the OP wants to have his adult children inherit something, what happens if one of the children dies at the same time or before him? Would you have wanted their surviving spouse to inherit anything? Your grandkids from that marriage, but not the spouse?

In my real-life case, my paternal grandmother died when she was in her 70s. At some point after that, my paternal grandfather had a will written up, or updated a previous will, indicating that his four children should share the inheritance, most of which was the family farmhouse and land.

Almost 20 years after his wife died and with him in his early 90s, his youngest son (my dad) died in his early 50s. He does not update his will.

About 10 years later, aged a few years past 100, my paternal grandfather died. The will was read, and my father's 1/4 share was split, between my sister and I, who were both adults at the time. I had assumed it would have gone to my mother, but that's the problem with assumptions...