Have you filled out a will stating exactly how you’d like your possessions and wealth divvied up should you die? If not, you might be leaving behind a mess for your loved ones.
That’s because without a will, dividing up your estate can get messy. It can cause hurt feelings among loved ones. While writing a will might not be enjoyable, it doesn’t take much time. In just 30 minutes you can create a will that will spare your loved ones the trouble of trying to divide your possessions after you die.
The smart move? Write a will today. If you don’t a lot can go wrong.
John O’Brien, a lawyer in Chicago, said that something known as intestate succession kicks in without a will. Each state’s rules vary, but intestate succession laws will dictate exactly where your money and possessions go should you die without specifying your own wishes in a will.
In most states, this means your wealth and properties would be passed on to your spouse and children, if you have any. If you don’t, your possessions would be passed on to your nearest living relatives, O’Brien said.
That might sound simple. But it’s far from it. Dying without a will can often leave behind a mess, legal experts say.
Melanie Cunningham, a lawyer based in the Bronx, a borough of New York City, said that leaving behind a will is a way of treating survivors with respect.
“What happens when someone dies without a will? Often headache for the loved ones left behind,” Cunningham said. “It is a real gift to ensure that we have done everything possible to take care of our personal affairs so that if and when something happens to us, things will be as simple as possible for the people we love and who depend on us.”
Cunningham said that leaving a will is about choice: either you decide what happens with your wealth and possessions after you die or the state in which you live will do it for you. Too often, people know what they want to happen to their property after they die, but they fail to spell it out in a will.
If you die without a will, who gets what depends on who your living relatives are and what their relationship is to you. Maybe you want to leave a prized painting or a car to a friend. If you don’t specify this in your will, this won’t happen. Instead, your living relatives will get your possessions.
The laws of how property is distributed – which relatives get what and how much – vary by state, Cunningham said. And they are not always intuitive.
Cunningham gives this example: Say an adult is financially supporting a parent every month even though that parent no longer lives with the adult. In New York state, if that person dies and has a spouse, the spouse inherits everything. If that person has a spouse and children, the spouse inherits the first $50,000 plus half of the balance of the estate. The children inherit everything else, Cunningham said.
The parent who was dependent on the financial support from the adult would be completely cut out as far as the state is concerned, Cunningham said. That parent would have to hope that the surviving spouse and children continue the same financial support.
“Basic estate planning can alleviate potential family conflict or general hard feelings,” Cunningham said.
Division of the Estate Without a Will
Tim Hewson, chief executive officer of USLegalWills.com, an online service based in New York City that helps people write their wills, said that confusion often reigns when people die without a will.
As Hewson said, if you die without a will, people will inevitably try to claim parts of your estate. Resentment might result when someone finally steps up to take responsibility. The person who wants to handle the disbursement of your estate will have to apply through a court process to be officially appointed as the estate administrator. While this happens, your assets will be frozen.
If no one wants to handle the estate? The courts will appoint a public trustee. This person will divide your estate according to the intestate distribution laws of your state or local jurisdiction. This rarely satisfies survivors, Hewson said.
“Intestate distribution laws rarely match a person’s actual intent, particularly if they have children,” Hewson said. “Often it requires a house to be sold for it to be divided between a spouse and children. There will be nothing for charities or friends and no handling of cherished family heirlooms.”
Leaving behind a will when you have minor children is even more important, Hewson said. If you don’t leave a will, a judge will appoint a guardian for your children. But, as Hewson said, this judge will know nothing about your friends or family members. They will appoint the guardian based on their age, relationship, location and finances.
“The judge will not take into account their parenting philosophy, spiritual beliefs and their general bond with the children,” Hewson said.
Division of the Estate with a Will
If you do leave behind a will you will have appointed an executor, a person who will immediately secure your assets and apply to the courts through the probate process to be officially named the administrator of your estate. The executor will make sure that everyone who needs funds – such as an elderly spouse – will have access to them and that any bills and taxes are paid.
With a will, you can be certain that your estate will be divided according to your wishes. If you want to donate money to charity, you can spell that out. If you want to create trusts for your children so that they receive their inheritance at a more mature age, you can set that up too.
And most importantly, if you have children who are minors, you can appoint a guardian for them, Hewson said.
Disputing How an Estate Is Divided
Jan Meyer, an attorney based in Dana Point, California, who specializes in wills, trusts, probates and trust administration, said that it’s possible for individuals to dispute the way an estate is divided. This isn’t easy, though.
Meyer said that individuals must prove that their interest takes priority over other heirs.
“This typically involves long, drawn-out litigation that is costly and ties up the estate for the length of that contest matter,” Meyer said.
Meyer recommends that everyone draw up a will. It’s the best way to avoid lengthy legal disputes and battles among surviving family members, she said.
“The court does not have to guess at your intent or whether someone is your heir or not,” Meyer said. “You make the decisions. Barring extenuating circumstances, your wishes are respected and abided by.”
How to Get a Will
You might worry that making a will is a complicated and time-consuming process. But it doesn’t have to be. For most people, creating a will is a straightforward process.
The legal site LegalZoom provides several good tips for making a will. First, make sure to clearly label your will with the words “Last Will and Testament,” and include your full name and address. Also, write that you are of sound mind and are not creating your will under duress.
Your next step is to name an executor to handle the disbursement of your estate. This person will often be your spouse, but it doesn’t have to be. You can also name a friend or other relative. Just make sure that the person you name is willing to take on the job.
It’s now time to list your heirs. This usually includes your spouse, children or partner. But you can also name others – friends, other relatives – as heirs. If you have minor or dependent children, name a guardian to raise them after you die. Again, make sure to discuss this with the person you plan to name as a guardian before you work on your will.
The most complicated step is dividing up your property and money. You’ll need to list everything from your home to your vehicles, antiques, paintings, stocks, bonds and bank accounts. Also, devote a percentage of these assets to your named heirs. This can vary, but you might decide to leave 40% of your assets to your spouse and 30% to each of your two children.
Finally, sign your will and have witnesses sign it too. State laws vary, but you’ll need at least two witnesses to sign your will in every state. These witnesses can’t be beneficiaries named in your will.
Today, creating a will is easier because you can turn to online programs that guide you through the process.
Have you ever had to deal with the loss of a loved one who didn’t leave a will? What obstacles did you face? Let us know in the comments below.
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