Reasons to Avoid Dying Intestate

Americans put their wills on the backburner in recent years, and it could cost their estates and heirs plenty.

The data is clear. In 2020, only 42% of American adults have a will, according to a widespread survey. Other studies have similar results. LegalZoom.com found that only 75% of adults think having a will is important, and 74% of Americans who lack a last will and testament reported that it is because they find wills and estate plans to be confusing topic.

These attitudes result from misunderstandings.

Many people report that they do not plan to get a will because they have fewer assets after the bear market. They believe having fewer assets makes a will unnecessary. Others don’t plan to write wills because of estate tax law changes. Fewer estates will pay taxes, and those whose estates won’t owe taxes believe they don’t need wills.

As I’ve been reporting for a number of years, a will is only part of an estate plan, and Estate Planning is far more than tax reduction.

Estate planning is the process of determining how your wealth and assets should be transferred to the heirs of your choice: your children, grandchildren, friends, families, charitable causes, etc. and then deciding which legal tools and structures to use to best meet your basic estate planning goals. It is not simply reducing or eliminating taxes and avoiding probate.

The major goal of an estate plan is to ensure that your assets are transferred to whomever you want to have them, and that the transfer is done in a reasonable time and at a reasonable cost. A will is a key part of achieving that goal.

A will is a legal document in which a person, known as the testator, sets forth his or her wishes about how to distribute an estate’s assets, pay debts, care for any minor children,  and handle other issues after the individual dies. Most often, the testator also appoints one or more executors to administer the estate and names guardians for minor children in a will. A will also might create one or more trusts and name the trustees.

Without a will, state law decides what happens to your assets. Most people mistakenly assume that without a will their assets automatically are inherited by their spouses. That is not the case in most states. In Virginia, for example, one third of the estate goes to the children and only two thirds to the surviving spouse.

Even if you are satisfied with the way the state will transfer your assets, all the problems aren’t solved. Suppose you do not have a spouse, so the estate will go equally to your adult children. Someone still has to decide which children get which assets. The children could have quite a fight over the specific division of the assets and end up never talking to each other again.

Or suppose you don’t want all the loved ones to have outright ownership of the assets. Perhaps a child has financial problems or is a substance abuser. Maybe you would like your spouse to get the assets, but only for the rest of his or her life. You want to ensure that whatever is left eventually goes to your children and not to a second spouse or the children of a second marriage. In these and other cases, you need a will that sets up a trust with the right instructions.

Anyone with minor children needs a will to establish guardianship of the children and management of the assets until they are mature.

Here are some reasons to have a will:

• Ensure that assets are distributed as the estate owner intended.
• Designate charities to receive part of an estate and the amounts or property they receive.
• Name one or more executors to handle the administrative items of the estate and carry out the testator’s wishes.
• Avoid having assets inherited by anyone the testator does not want to receive them, even though that person otherwise would inherit under state intestacy laws.
• Assign how life insurance proceeds that are payable to a person’s estate are distributed.
• Identify guardians for minor children

The lack of a will also can delay final settlement of your estate. With a will, the probate process is well-established and can flow fairly smoothly in most states, especially those with simplified probate procedures for all but the largest estates. Without a will, the court gets more involved and has to verify more information.

Those who postpone getting a will also generally postpone other aspects of the estate planning process. The polls show that 70% also do not have a living will or medical directive. Only 27% have health care powers of attorney, and only 26% have financial powers of attorney. Those without wills probably also will not leave their heirs an inventory of the estate or funeral instructions.

Some people are avoiding wills now, because they believe the fluctuating estate tax law requires a will to be changed in a few years. That is not a good reason to procrastinate. An estate plan should be reviewed every couple of years anyway, to see if it still meets your needs. In addition, a will can be written now to take into account the planned estate tax changes, as I’ve explained in past reports. A rewriting each time the next set of phased in tax cuts takes place isn’t necessary.

Most people don’t even need to visit a lawyer to draft a will. Only people who have special needs or whose estates might be taxable really need to use an estate planning expert, which is where the fees can get high. Others can get simple wills from lawyers for $50 or so. Or they can us standard wills from online resources such as LegalZoom.com and BuildaWill.com. Quicken WillMaker Plus is a software program that costs $50 or less and helps you draft a will and other key documents. Another resource is Nolo’s Simple Will Book from Nolo.com (800-728-3555).

These sources also contain other key estate planning documents. You can get a free living will or advanced healthcare directive at www.PartnershipforCaring.org.