Why You Need A Will (and When)

Many people are confused as to when and why they should put a will together. I am writing this blog to hopefully give some people more direction toward making the right decision (at least before all their kids are grown!).

When Do You Need a Will?

First of all, let's address the obvious. If you are married and have minor children, you definitely need a will. You should also have living wills and powers of attorney (discussed further below).

Second, if you are single, have very few assets, have no dependents and do not care what happens to your property when you die, you don't need a will. You should however, consider a living will.

If you are married without kids, you probably should have a will especially if you intend to have kids in the not so distant future. Also, include living wills and powers of attorney. Even if you don't have a lot of assets yet, dying without a will makes things real difficult on survivors you leave behind.

If you have a large estate, as well as loved ones (or charities) you care about, you need a complex will with advanced tax provisions drafted by a competent and experienced estate planning attorney. This plan might include revocable and/or irrevocable trusts, living wills, powers of attorney, and other complex documents such as GRATs, CRATs, QPRTs, QDOTs, amongst others. (If you have been through this process already, you may recognize a lot of these acronyms even though you may not be completely clear as to what purpose they serve).

So, Why Do You Need a Will and Other Documents?

When you die without a will (called dying "intestate"), your property and minor children get subjected to the rules created in the particular state in which resided at your death. Although courts are always concerned about the best interests of your surviving minor children, the disposition of your property is often another story. The intestate rules which apply to property distribution generally favor the state and the general public, not the individual and their family. Tax rules are written as such to take the largest amount of tax unless some prior planning has been done. In addition, many states have a costly probate process - the process of submitting your will to court and disposing of your assets. Planning can be done to minimize the costs of probate. In addition, regarding minor children it is important that you and your spouse choose guardians for them - do not leave surviving family members to battle it out and argue over what they think your wishes are.

Also, between surviving spouses and surviving children, every state has different rules as to how much of the estate your spouse is entitled to. Dying without a will can make financial survival very difficult for your survivor.

With situations of divorced parents, second marriages, same-sex couples, having a written document is a must. In most situations, your property will not pass as you intend.

You should have a living will if you wish to avoid being kept alive by artificial means. Take the Terry Schiavo case out of Florida. She did not have a living will or advanced healthcare directive (sometimes called a medical power of attorney). Her husband applied to the court for permission to remove her from life support. Her parents opposed the position of her husband and it became a national and political issue.

Powers of attorney are often valuable between spouses and business partners to act on each others behalf in situations of abscence and disability. They are various types of powers of attorneys including durable powers, nondurable powers, and springing powers.

Life is a random walk. There is no better time than the present to get just the basics of your affairs in order. I often find people shy away from completing wills because of the price (I charge from $1,800 and up for wills, living wills and powers for both spouses in New Jersey - obviously price will vary from firm to firm and from area to area). People can often be penny-wise and pound-foolish. Don't put such a small price on your family's safety and financial security.

Beyond the appropriate documents, take the time to organize your affairs to make the process after your death easier on survivors. We are publishing a book - "For My Heirs: A Journal of Guidance and Last Instructions" just for this purpose. If you'd like more info, please contact our office.

I welcome comments and questions, so feel free to post them.