Yes, no, maybe …
If you ask a group of attorneys, most will say that everyone needs to have a last will and testament. They’re not wrong but they are being a little naive. 6 out of 10 American adults don’t have a will. Even if you are in the 40% with a will, you are NOT completely covered. Keep reading to find out why and what you can do. Find out why and what you can do.
Don’t know what a last will and testament is, check out our What is a will article.
Why don’t more people have wills? A couple of reasons. First, we don’t like to think about dying. We know that we won’t live forever but it is easy to put off this morbid task for later. Second, to have a will prepared by an attorney can be expensive and time-consuming. Time and money that may be better spent on more immediate needs. Last, creating a will forces you to wrestle with some tough decisions. Who should get what, who should help raise the kids if both parents die, and do you have enough life insurance? You may not know how or want, to answer these questions now.
So, who NEEDS a will? These five types of people should consider finding an experienced attorney to help them create a will.
1. You don’t like defaults
If you die without a valid will, the laws in your state will decide by default. State law will govern what happens to your financial assets and other belongings. You and your family’s preferences will be secondary to what’s provided by default under your state’s laws. In most cases, that means your spouse and children will take first priority but not always.
If you want more than the default and would rather have a say, then you need to get a will. Over time, you should review and update your will to make sure that it continues to fit your priorities and circumstances.
2. You have significant assets
It’s easier not to have a will when you’re young, single, and have no money.
But, as you start making more money, paying off those student loans, buying a house, and setting aside money for retirement, you have more to lose if you don’t have a will in place. You’ve worked hard for what you’ve earned and it makes sense that you would want to preserve those assets to provide for your family.
If you own real estate in multiple states, have intellectual property (like copyrights, trademarks or patents), or have hard to sell investments (like shares in a private company), then a will is a key tool for transferring those valuable assets after your death.
A will is one important tool to help maximize the value of these assets. A will makes sure your assets go to the correct person or charity and can help minimize the impact of taxes on your estate.
3. You’re a business owner
If you own a business, then you are likely an integral figure in its success. You know how you like things done, all the important vendors, and key customers. Is your spouse, adult child, or fellow co-owners prepared or able to step in for you, if needed? Do you have co-owners who are obligated to buy out your shares, how is the value of those shares calculated? Are there other critical factors to consider?
Estate planning for business owners is a complicated topic that requires the advice from legal, financial and tax experts. A will is the first, but not the only, part of how you address how to run or wind down your business when you pass.
4. You have a non-traditional family
Are you divorced? Do you have children from different relationships? Are you in a long-term relationship but not married?
The state laws that apply if you don’t have a will are very old and often based on notions of the “traditional” family structure. Many states and many courts struggle with how to apply these rules to non-traditional families. For example, should your step-children receive an equal share of your assets as your birth children? Or, if you have a life partner, it’s not guaranteed that they’ll get to stay in the family home if you die.
The good news is you don’t have to worry about out-of-date laws or courts not knowing how to deal with your circumstances. You can use a will to address these issues and have confidence that your personal preferences are followed.
5. You have young children or children with special needs
Who would raise your minor children if both parents passed away? You have a choice – you can decide or a judge will.
Thankfully, it is exceptionally rare that both parents predecease their children but it does happen. In fact, it happened in my family when my aunt and uncle were both killed in a car accident. Since they had not named a guardian in their will, a court decided on guardianship for their son (my cousin). Fights over guardianship often lead to conflict and ill feelings among the surviving family members. You don’t want your child or children to be stuck in the middle of that fight.
According to estate planning attorneys, the inability to agree on who should be the children’s guardian is the number one reason why parents do not finish their wills. Remember, couples generally shouldn’t have a joint will, each individual can and should have their own, separate will. It is always preferable if both parents agree on guardianship so that both wills are consistent. However, if you cannot, it is better for each of you to list a different guardian, rather than to have no guardian named at all.
If you have a child with special needs, they may need lifelong care. It is important to make arrangements in advance for this care. Having a will is an important part of making these arrangements. In combination with other estate planning tools, a will can help ensure that they will have the financial and other support they will need when you are no longer there to provide it.
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If you need a will, it is important to talk with an experienced and licensed attorney in your state about your specific circumstance and how best to address your particular needs.
Need an attorney? One of the best sources is to ask for a referral from your friends and family. Before starting, you should interview the attorney to see if they will be a good fit, have substantive experience in the area of estate planning, and to make sure you understand what work will be performed and how much it will cost. It is important to know upfront whether you will be charged by the hour or whether the legal services will be provided for a fixed fee. A good attorney will encourage you to ask questions and will be transparent about their process.
Need a will? It’s easy to get one and you’ll feel relieved when one is in place.
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There are hundreds of details that your family will need during this time of need that are not included in a will. It’s never too early to be prepared.
Would your family and friends know what to do if something happened to you? LastLtr.com helps you securely gather, organize and share all of the important details they will need. Each Last Letter is fully customized and contains all of the information and preferences that you want to include. You can create a Last Letter for yourself or for an aging parent.
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This article is for educational purposes only and does not constitute legal advice. If you have questions about your legal rights, responsibilities or options, you should consult with an attorney in your state.