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.
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.
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?
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.