Wills and Estates

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Why Have a Will?

There are very few people who do not need a Will. If the state intestacy statute (state laws that set forth who inherits without a Will) provides for the exact distribution of a person's property as they would choose, then perhaps a Will is unnecessary. However, even a Simple Will does much more than simply provide for distribution of property.  Parents with minor children need to appoint a guardian to care for the children in the event they die while the children are minors. Without this designation, anyone could apply to the court to be a guardian of the children. Also, trusts for minor children can be set up to provide fairly for children of different ages and circumstances. Likewise, a Will appoints an executor to handle the estate, decide which assets should be sold or retained, file tax returns, and provide for an orderly distribution of the property. Again, without a Will, anyone can apply to the court to act as administrator of the estate. For those individuals with estates approaching or exceeding $600,000 in value, a Will not only distributes the property but can provide estate tax planning designed to minimize federal and state death taxes.

There are certain estate planning devices that are commonly referred to as Will substitutes. The goal of a Will substitute is usually an attempt to avoid the probate process, although many times this is not accomplished because, through inadvertence, not every asset is covered by the Will substitute. Joint ownership with right of survivorship is the most common. When property is jointly owned, it passes to the joint owner at the death of the other joint owner, regardless of whether or not there is a Will. There are limited circumstances where this is suitable as a Will substitute. One situation might be where a surviving spouse has only one child and wishes to leave all property to that child. In certain cases, spouses may own all of their property as joint tenants with right of survivorship. This may be acceptable until the death of the first spouse dies, but then the surviving spouse must begin the estate planning process all over to dispose of the property at their death and certain estate tax planning benefits may have already been lost.

Revocable trusts are also used as Will substitutes, although generally a person with a revocable trust also has what is known as a "pour over" Will. Trusts are a complex area beyond the scope of this topic. Briefly, trusts can be attractive for those who desire that the details of their estate not become a public record at the time of their death. The time involved in transferring assets to beneficiaries can sometimes be expedited with a trust. For larger estates, the fees involved with a trust may be less than the administration fees required through probate; however, this will vary greatly depending on the state. Also, a probated Will provides an established procedure for creditors to file claims and for heirs to contest the distribution under the Will. However, these claims can also be asserted against a trust, but there is not a procedure set forth at time of death. There are also many complexities involved with a trust that in many cases offset the perceived benefits

This is not a substitute for legal advice.  An attorney must be consulted.
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