Do You Really Need a Will?

May 20, 2009

Filed under: Estate Planning — Tags: , , , — Alexis @ 1:30 PM

If you want to have a say in who gets your possessions after you die, then yes.  If not, then the “laws of intestacy” govern what happens to an estate when a person dies without a Will. 

A typical scenario is one parent dies leaving his spouse and children.  Without a Will, anything that was in his name alone at his passing is divided equally – one half to his wife, one half split evenly among his children.  Most people would prefer to leave all of their assets to their spouse, and then after the spouse dies, to the children.  If that is what you prefer, then you need a Will.  

What happens if you don’t have a spouse, but you do have children?  Without a Will, anything in your name alone at your passing goes to your children, divided equally among them. Generally speaking, this is what most people want. But if you have a disabled child or grandchild, this scheme will cause problems.  

If you have a spouse and no children?  The spouse gets it all. Again, probably what most people would want under this scenario. But if, for example, there are certain possessions you would like to leave to a friend or niece or nephew, or if you want to make a gift to charity, then you need a Will. 

And if you are a single person – no spouse and no children?  It goes to your parents, and if they are no longer living, to your siblings.  If your parents are using public benefits to provide healthcare (ex. nursing home), then a direct inheritance from you could upset the apple cart.  

Remember that all of the above applies only to “probate property”  – that is, anything that has only your name on it. “Nonprobate property” has your name plus another, for example, naming someone as a beneficiary on your IRA or life insurance, or purchasing a home jointly (usually with your spouse). Nonprobate property passes right to the person you have named.  

So if you think that the laws of intestacy will achieve your goals, then you probably don’t need a Will.  But if you have any particular gifts you want to make, and especially if you have any disabled family members, then you need a Will.