Wills and Estate Planning and Probate Practice

Question: “Do I Really Need a Will?”
Answer: “Absolutely!”

If you die without a will, you will have no say in what happens after your death. Instead, the law will dictate (1) the appointment of a personal representative for your estate, (2) the distribution of everything you own, and (3) the guardianship of any minor children you may have. The following is a brief explanation of five of the main reasons why having a will has become essential in our society.

Reason #1

A will permits you to distribute your property -- including those items with only sentimental value -- in the manner you desire. This includes (1) specific bequests to individuals (both relatives and others) and to organizations, (2) bequests that are unequal in dollar value but, in your judgment, are proportional to the beneficiary’s needs or your desires, and (3) the ability to deal with particular assets, relatives, problems, and desires in a manner tailored to fit your unique situation. If, unfortunately, you die without a will, the law will provide a rigid, predetermined formula for disposing of your assets, which may be completely contrary to your desires.

Reason #2

A will permits you to designate the person you would like to serve in the all-important position of being the personal representative of your estate. This person carries out the instructions that you place in your will. Despite how specific your will is, there are always some judgment calls that must be made. With both the high level of responsibility and the broad discretion that the law gives to your personal representative, it is essential that you -- and not someone else – designate the person who will serve as your personal representative. Only that way can you ensure that you have someone who is (1) capable and willing to handle the responsibility, (2) trustworthy, and (3) knowledgeable enough about your personal desires to take them into account in making decisions. If, unfortunately, you die without a will, the court will appoint your personal representative, without any input. It is possible that the person named is someone (1) that you would not want to make decisions for you, and (2) who is not suited or competent to handle your affairs. Moreover, if there is a dispute as to who should be the personal representative, the person ultimately appointed must be able to stand up to the others.

Reason #3

If you have dependents (including not only minor children, but adults who, because of mental or physical infirmity, are dependent on you), a will can protect them by (1) naming their guardian, and (2) establishing a trust, particularly in the event of the death of both you and your spouse. If, unfortunately, you die without a will, there may be a guardianship proceeding, particularly if there is a dispute as to either the status of your dependents or your assets as they affect your dependents.

Reason #4

A will greatly simplifies the probate process, permitting administrative probate and avoiding the more complicated judicial probate. This is particularly important during the crucial first several days following your death. Even little things can become big things without a will, such as, who makes the funeral decisions -- method, location, date, and cost.

Reason #5

A will permits you to resolve the complication that arises from the simultaneous death (within a 30-day period) of you and your spouse. If, unfortunately, you die without a will, the law’s inflexibility only adds to the complications for the estate of whichever spouse dies second, particularly if that spouse dies before the resolution of the other spouse’s estate.

We offer a comprehensive estate plan, consisting of three documents, as follows: (1) a will, (2) a durable medical power of attorney, which consists of what used to be two documents -- a living will and a medical power of attorney, and (3) a general power of attorney. These three documents become a six-document package for a married couple. After an extensive interview, concerning the client’s desires, plans, and goals, these documents are drafted to serve that particular client’s individual situation, needs, and desires. For clients who pass away, the Firm handles all post-death issues.