In another thread there is much discussion about someone dying without a will and how unfortunate that is (the dying, yes, but the absence of a will as well).
Does a couple with modest assets and two adult children need a will?
If so, why? Wouldn’t the assets be, by law, equally divided between the two?
What are the pitfalls of not having a will?
I am not arguing that it is not necessary, just trying to get informed.
mmm
Who is going to be guardians for your kids if they are still of age? (I realize this does not apply in your case.)
Who is going to be executor of your will and possibly charge a fee larger than you’d like?
Who is going to get items that have particular “value” to one child? The court will not consider sentimental value the same way you would.
One possible pitfall is that the surviving children do not have the money to hire a lawyer to go to court in the event of a dispute on the assets. This happened to my mother, when her mother died and her sister refused to share. It was the cause of years of bitterness between them.
As you said, not applicable in my case.
I don’t quite understand this, particularly the part about the fee.
I can’t think of a single thing that would be fought over.
This (lack of money to hire a lawyer) would not be a concern.
I know it sounds like I’m being argumentative, but I’m really just trying to decide if I need a will. I’m open to other considerations I’ve not thought of.
mmm
Also depending on how your state handles the situation there can be other ramifications as well. Must you have a will? Probably not. But the darn things turn out to be handy often enough to warrant the effort.
In our case the biggest help was my father designating a local attorney as the executor, as he was living alone in Florida and the closest child (me) lives in Pennsylvania. The attorney made it clear that he was entitled to a % of the estate for that service (he was the estate attorney as well, so there was a fee reduction from the permitted statutory fees for estate attorney and executor) but my siblings and I agreed that it was money well spent.
Otherwise most everything went evenly between the six of us and that which didn’t was distributed according to beneficiary designations in the various funds.
The POA and medical surrogate documents were more useful in his last few months and I’m glad those were completed when the will was drafted and signed.
My spouse and I never had children, so that wasn’t a consideration. I found out when he died that in our state of residence (Indiana) if someone dies without a will or children then the surviving spouse gets everything automatically. With no will, if his remaining relatives ever show up there’s nothing to contest and they can claim nothing.
As opposed to my mother-in-law who wrote several wills over the course of her life, all of which showed up the moment she was declared dead leading to much shouting and enrichment of attorneys.
Most of the time a well crafted will is good thing. For some of us, it does not matter and lack of one causes no harm. But if there are any significant assets (starting with “a house”) then you’re probably better off with one than without one.
I don’t have a spouse and only have one brother. I suspect if I die before my parents they get all my stuff and if I die after, my brother does.
Absolutely you need a will. Think of it as an insurance premium: you pay a little now and whenever you rewrite it but you save your estate from lawyers’ fees when you’re dead.
I have no children and a modest estate. It’s quite likely there will be nothing left when I die, but I’m not dead yet. So I have a will which specifies who gets what.
If things are truely simple why not look into a will prepared online? Google shows lots of options. POA and medical directives are also worth having.
You won’t care but it will make things much easier for your wife and kids. Why complicate their grief needlessly?
What lawyers’ fees are there when nothing is contested?
That is, fees that a will would somehow cover?
mmm
When I was a single parent (the wife died), I had a will designating a family to raise my off-spring. I didn’t want the family, I was raised with, to have control.
Now, she is older and married. I don’t have a will, as she is my only child. And will receive everything.
But, I do have a folder with her name on it. It has requests, and passwords for banks and the Dope ( to say goodbye to you folks).
Do you know the laws in your state, and what they require? Do you have grandchildren? Might you have grandchildren?
If you have possessions, are you sure your kids will absolutely agree on the disposition of each one? If not, who makes the final call?
Do your kids know how to navigate through probate?
A cheap will has its advantages, but having a lawyer who knows your situation and who can help your kids will make their job much easier. When my father-in-law died my wife, who is an only child, was really happy he had one, especially since the estate had to be settled at long distance.
But basically do it to make the lives of your kids easier during a trying time.
You seem to be considering it only from one side. It’s really very easy to make a will, so why not just do it and make life (heh) simple for everyone involved?
How do you know nothing will be contested?
Actually, you do have a will. It’s a government issued intestacy will, one size fits all.
Do you live in a jurisdiction where the spouse gets everything?
Or does the spouse get a percentage share when the estate is over a certain amount, and the kids each get a percentage share?
Is your house in joint title with your wife? Does she get it all when you die, plus a share of the rest of the estate? Or is the value of the house included in the calculation of how big your estate is?
Are there tax implications for property you own? Is there capital gains tax on your house or other assets?
Are you content to die without even knowing how your estate will be distributed, just trusting that the one size fits all intestacy rules will work for your family?
How do you know there would not be any contests over your estate?
Having a will can help reduce the possibility of conflict, because it may be fairer, because you’ve turned your mind to what will be fair to your family, rather than relying on the one-size-fits all government issue will.
Who will administer the estate? Does the law say it’s your wife? Your kids? If your wife dies before you, will both your kids be the administrators and have to agree on everything?
Are there tax or probate fees that can be reduced by a properly drafted will, thereby making sure your wife and kids get as much of your estate as possible?
Not meant as legal advice. Just questions you should ask yourself.
Let’s suppose a big chunk of the estate is a house, which is to be sold and the money divided. The house is appraised is $200K. Immediately a buyer shows up with an offer and after negotiation won’t go higher than $180K. One child wants to accept the offer so to get the money immediately. The other wants to wait until they get at least the appraised value. This is certainly something that is contested. Who decides?
An alternative to a will that may be less expensive and more flexible is a Living Trust. My father had one, and I was the trustee after he died, so I have been through this.
You put all your assets into the trust, assign yourself and your spouse as the living trustees, and then someone you trust as the trustee for after you die (with another person as a backup just in case). The trust contains the instructions for division of the assets, which once completely divided the trust is officially dissolved. There is no probate. The trustee (is it called residuary trustee? I can’t remember) only needs the original of the trust document and the death certificate(s) for the original trustee(s) to get control of the assets, e.g. bank accounts, house deed, investment accounts, etc. The trust document should probably either be witnessed, like a will, or notarized, although I can’t remember if my father’s had either of those. The trustee will also need to get a tax number for the trust, after your death, and to file at least one tax return for the trust (only one if all the assets are disbursed in the same year that you died).
Make sure that the heirs have a copy of the trust document so that the residuary trustee has a good reason to fear reprisal if (s)he fails to follow the disbursement instructions in the trust. Also, you can make it easier with some things like investment accounts to have them set up in advance with the names of who inherits them in the event of your death.
The biggest issue, as with the executor of a will, is finding a trustee whom you trust and who will be willing to do everything required. My father was, frankly, lucky to have me. He had some ongoing income assets that I can’t dispose of, and which I will probably be dealing with for the rest of my life. As for setup cost, you can find forms and instructions online for setting these up in your state; also I recommend the book Make Your Own Living Trust from Nolo press.
I’m in California also, and have a trust and am doing the final tax return for my father’s trust. But there are very few in other parts of the country. When we lived in NJ we had a will, or course, and a lawyer, but no one had a trust. California probate is so awful that you need one.
BTW, if you do have a trust, don’t force it to be kept open after you die. My father did, for what he thought was good reasons, and I discovered that income in the trust gets taxed at 39.6%, starting at $12,500. Youch!
Lots of good advice, thanks. I think this post is the answer.
mmm