Not Having a Will Leaves a Lot Up to the Court
As an estate planning attorney, it seems that about 75% of my clients (or potential clients) don’t have a will – a percentage that continually surprises me with so much at stake.
Not having a will is particularly risky for parents with minor children. To die without a will is to die intestate. Without the direction that a will provides, a judge will decide who will serve as guardian of minor children.
Even clients with adult children – or no children – risk allowing the probate court to determine how their assets are distributed if they die intestate.
I don’t think it’s necessarily the cost or time involved in drafting a will that is a problem for people, since drafting a valid will is a relatively inexpensive and painless task. Instead, I think complacency – thinking that death is a long way away – or fear – not wanting to think about death or leaving children behind – are the main reasons people don’t have a will.
At a minimum, if you have minor children, you should have a will in place to establish guardianship. If you have a particular person in mind who shares your values, religion, or overall philosophy in life, then you should at minimum have a will in place to name that person as guardian. Not having a will potentially exposes children to a legal battle in probate court.
In addition to the guardianship issue, if you want non-family members to inherit a portion of your estate, then you need to state that in a will. If you die intestate, your estate will be distributed according to state law, not necessarily according to your wishes. With very few exceptions, only family members will inherit your estate if you die intestate.
You need a will if you want to leave money to a close friend, church, or charity, for example, or if you don’t want a certain family member to receive a portion of your estate. The same is true if you want someone other than a family member to handle your funeral arrangements. I describe that situation in greater detail here.
Potential clients who are hesitant to create a will often tell me they don’t feel they have enough assets to justify drafting a will. What I have discovered is that people generally underestimate their net worth, often because they forget to recognize the value of a life insurance policy or other asset.
It’s my business to draft wills, so I have a vested interest in explaining their value. But I also am a husband, father and immediate member of two families, so I practice what I preach. Even if I weren’t an attorney, I would have a will and insist my wife have one as well. There’s just too much at stake to leave these important decisions to a probate judge who is administering state law without the benefit of my input.