WILLS

Why should you have a will?

Many people tell me that they don’t need a will because everything is in a joint account or everything will go to their spouse.  And I always tell them, “You should still have a will.”

If you don’t have a will, your property will pass by intestate succession, the rules of which vary by state. Many people believe that their property will just go to their spouse or their children and in intestate succession that is not always the case. A portion will go to your spouse, but if you have grown children, a portion may go to them.  It gets even more complicated if your children have children and one of them predeceases you. Things can be complicated further if your spouse dies at the same time or shortly after you do.  What if you and/or your spouse have children from a previous relationship?  Without a will, all or some of your property/possessions could end up going to your spouse’s relatives. And if you do not have a spouse or children your estate likely will pass to your parents and/or siblings and that may not be how you wish your assets to be distributed. 

Not only does a will ensure that your property/possessions go to your loved one in an amount you desire for each person to have, but it also can name who the executor will be and allow the executor to avoid some court oversight and payment of bond.

In sum, everyone should have a will even if you don’t have a lot of property.  If nothing else a will can give you the peace of mind of knowing that your wishes will be taken care of and that your loved ones will be taken care of and not have to deal with extra stresses after you pass away.


Will v. Revocable Trust

When formulating an estate plan one of the decisions to make is if you should just use a Will or a Revocable Trust. There are pros and cons to each method and what works best will ultimately depend on your circumstances and personal preference. 

Will

  • Disposes of your probate assets
  • Names a Personal Representative to handle your affairs
  • Expresses guardianship preference for minor children. 
  • Can be relatively simple and inexpensive to set up and almost always is less expensive and less complex than a Revocable Trust
  • Once complete requires no to minimal management unless your circumstances or wishes change
  • Can incorporate a Testamentary Trust if necessary to handle assets for an individual until he/she attains a certain age (i.e. minor children)
  • Requires your assets to go through a court process called "probate" before they are dispersed to your beneficiaries

Revocable Trust

  • Disposes of your probate assets (can be structured to dispose of non-probate assets as well)
  • Names a Trustee to handle your assets
  • Generally is more complex and more expensive to set up than a Will and can include other costs such as moving assets into Trust
  • Requires some management and maintenance
  • Can be set up to handle assets for an individual until he/she attains a certain age (i.e. minor children)
  • May allow for your assets (or at least most of your assets) to avoid probate and can control your assets even after you pass away 
  • Can be a useful tool for couples with children from previous relationships, non-married couples and where one spouse is not a US citizen. 
  • A Will is still recommended in case some assets are not placed in the Trust and if there are minor children, so that guardianship preferences can be established