Let’s be honest: nobody enjoys making a Will. Making a Will means, at its most basic level, confronting the reality of mortality and making important decisions about a life that no longer includes you. It’s easy to understand why people might want to avoid that kind of discomfort.
Besides, if you’re relatively young, healthy, or don’t have a lot of assets, you might figure that there’s no real need to make a Will. Chances are that you have years ahead of you and not much to leave to anyone right now. As busy as your day-to-day life is, it’s easy to put off the task of estate planning for another day. But before you know it, thousands of days have rolled by.
You might be tempted to think that there will always be more time to make an estate plan—until suddenly, one day, there isn’t. Unfortunately, 2020, with its pandemic, wildfires, and hurricanes, has shown us that even the young and healthy can’t count on the luxury of having more time. Even those without significant assets still need a Will, especially if they have young children.
A Last Will and Testament is the basic building block of an estate plan. The only way to avoid the pain of making one is to die without one—and that just transfers the pain to your loved ones. Learn why you need a Will, and what other estate planning tools you may want to put into effect.
You Need a Will if You Have a Minor Child.
Even if you don’t have many (or any!) assets, if you have a minor child, you absolutely must have a Will. A Will is the only estate planning document in which you can name a guardian for your minor child. In the event of your death, it’s most likely that your child’s surviving parent would care for them. But what if your child’s other parent isn’t available or something happens to both of you? What if the other parent has been absent from the child’s life, or worse, abusive to your child?
No matter how remote you believe that possibility may be, you must plan for your child’s care in the event of your death during that child’s minority. If you have not named a guardian in a will, your child’s extended family could end up fighting in court about who gets to be her guardian. Typically, the court will choose a parent or close relative, but that relative could be someone you wouldn’t have chosen and who may not honor your wishes for your child’s upbringing. Creating a Will is a simple and inexpensive way to avoid these outcomes. Putting your wishes in a document will help your loved ones.
A Will can also dictate how you want your children to receive their inheritance from you. Will they have sufficient maturity to refrain from buying that shiny Maserati at age 18, or can they think toward college and graduate school? Your Will can specify how and when your children receive your money.
You Must Have a Will To Leave Assets to a Non-Relative.
States have laws in place to dictate the distribution of property when someone dies without a Will or other estate plan. These laws are called laws of intestate succession (intestate means dying without a Will). Ohio’s law of intestate succession is called the Statute of Descent and Distribution. Essentially, the law distributes a deceased person’s assets as most people would probably do if they had made a Will: to close relatives first.
But what if you want to leave assets to a longtime romantic partner to whom you’re not married, or a best friend, or a charity? In order to accomplish that, you will need to make your wishes clear and enforceable in a Will or other estate planning document like a trust. The Statute of Descent and Distribution makes no provision for non-relatives.
It is Important to Have a Will if Your Family Relationships are Strained.
If you don’t have a Will or estate plan, the Statute of Descent and Distribution becomes your estate plan by default. Even if you would want your assets to go to your nearest relatives, having a Will, trust, or estate plan makes it easier. And if you don’t want your assets to go to your nearest relatives, it is essential to have an estate plan.
Picture this scenario: a recently divorced man with no children suddenly and unexpectedly passes away. He has no will or estate plan. He has three brothers with whom he was close and he was very close with his father, but his mother had been abusive, abandoned the family when he was a child, and he had not had contact with her for years. According to the Statute of Descent and Distribution, the abusive mother would get half of the deceased man’s estate and his father would receive the other half. His brothers would receive nothing.
Or imagine a woman on the brink of filing for divorce from her husband. She dies suddenly without a Will. In the eyes of the law, her husband is her next-of-kin. He would receive most, if not all, of her estate, even if they had children together.
The law makes certain assumptions about whom you would want to receive your assets in the event of your death. For most people, those assumptions are more or less correct. But if the assumptions don’t line up with the reality of your relationships, you need a Will.
In a Will, you name a person, called an Executor, who is charged with the responsibility of carrying out your wishes, and an emergency back up person if you outlive your first choice. Without a Will, families sometimes fight about who should be “in charge” of collecting and distributing your assets.
While a Will is the cornerstone of your estate plan, it is likely not the only document you may need. Depending on your circumstances and needs, you may also want to incorporate a trust into your estate plan. It is likely that you will also want powers of attorney and advance medical directives, so that someone you trust can make financial and healthcare decisions for you if you are unable to make them for yourself. There are also ways to keep certain assets out of your estate entirely to “skip” the probate process. These are all things our office can help you with.
If you have questions about whether you need a will, how to make a will, or how divorce affects your estate planning needs, we invite you to contact our law office to schedule a consultation.
