Why Make A Will?
Nobody really wants to think about death or the need to prepare for that inevitable prospect. If you don’t prepare, decisions will still be made for you, for the “law” will step in and fill the gap.
If you make preparations for your death, you can provide for what you prefer to have happen—i.e., your “will.” You can also simplify, reduce the cost of, and make more certain the disposition of your estate. Here are a few reasons to plan now for your passing:
- To have your property go where you want it to go. If you do not have a will, your property will pass according to State law. Generally, that means everything to your spouse; if there is no spouse, then everything to your children or their descendants; then parents; then brothers/sisters or their descendants; etc. While this law is not unreasonable, it is inflexible, making it impossible to provide special gifts to certain individuals or to divide between spouse and children if that is desired. Without a will, it is also impossible to make a gift to a good friend, faithful employee or favored charity. With a will, you can decide to whom and in what proportions you want your property to go. You may want to provide differently for children with different needs.
- To provide for the guardianship of minor children and for how and when your children will receive your property. For a parent, the right to nominate the guardian for your children is probably the most important reason for having a will. The last surviving parent can nominate by their Will a guardian and alternate guardian for minor children. Without a will, the court will likely appoint the first suitable person to come forward. That person may or may not be your first choice or might be someone who, while apparently suitable, would be your “last” choice. Two people might come forward for court appointment thus creating the possibility of a “custody” fight that could be avoided by having one person named in the will. With a will, you can determine who will hold and control the property of your minor children. That person is called a trustee and may or may not be the guardian. The trustee can be given narrow or broad discretion in making expenditures on behalf of your children. In your will, you can provide that the trust terminates at some age other than legal majority, which is age 18. Many people believe that age 25 or even 30 is a more responsible age for receipt of a substantial amount of money or property. (Do you really believe that 18 year old Johnny is going to save for college, a house or a rainy day? Or might he be tempted to buy a Corvette or take a trip to Las Vegas?)
- To select a personal representative. If you do not have a will, the court will appoint a personal representative (administrator) of your estate. That person may be a family member, a local attorney or a local bank. The personal representative is responsible for collecting the assets of your estate, paying your debts, taxes and expenses, and distributing the balance to your heirs. In your will, you may designate your personal representative (executor), who should be the person or institution that you want to handle your estate. You can also name alternate executors in case one person later becomes unwilling or unable to serve. A personal representative ordinarily receives a court-allowed fee in return for administering the estate. A will may save you money if you appoint an executor who decides not to charge the customary 5% commission. A local bank or attorney will surely charge that fee, while a close family member may decline payment for handling your estate. In a will, you may waive the requirement of surety on the bond of your executor. That is an annual expense paid to a bonding company that you may want to avoid. Without a will, the surety bond is mandatory.
- To plan for other important decisions. Often when considering a will, it is advisable to plan for possible incompetence and for prolonged dying when death is imminent and there is no hope of recovery. In the case of incompetence, a “general power of attorney” given to your spouse, close friend, or some other trusted person can be used to take care of your business and financial affairs in the event you are unable to do so because you have had an incapacitating stroke or have become mentally incompetent. To avoid a lingering and expensive dying process, you can execute what is called a “living will.” This directs your physician whether or not to take extraordinary measures to artificially prolong your life, when death is near and irreversible. Another alternative is to entrust a loved one with power of attorney to make critical medical decisions for you, if you are unable to do so for yourself.