A Will is a legal document that details the distribution of your property (and the care of any minor children, but that’s another article). In the absence of a Will, the laws of the state you live in determine where your possessions go. In addition to the “intestacy statutes,” as they’re called, states will often place other legal restrictions on those who would handle the estates of a deceased person. They consider them to be protective measures, but they usually serve just to add time and expense.
Creating a Will can also serve to minimize tensions between your survivors. Relatives battling over your money and/or possessions can destroy family bonds that took a lifetime to create and maintain. In conflicts between family members, the only party guaranteed to prevail is the lawyer for each side. Court and litigation costs can take an enormous chunk out of an estate very quickly. For example, two lawyers appearing in court for a half day will cost the Estate a minimum of $2,000 – and that is just for their appearance, not including time to prepare documents afterward or prepare arguments beforehand. A few court appearances and some motion practice, some depositions, and a trial, and it is no wonder why it can cost $50,000 or more to try a Will contest between warring family members.
A Will also allows you to be clear and precise about who gets your property. The laws of intestacy in a state can have unintended consequences for who receives what without a Will – especially in cases with blended families, difficult family relationships, or where a person has children with multiple different people. A Will is also your one and only chance to make a charitable bequest after your death – in the absence of anything specifically written by you, charities do not receive anything in intestacy. Finally, when proceeding “by administration,” which is to say without a Will, most states will require (with few exceptions) that the administrator post a bond in order to proceed. This means that the administrator will use Estate assets to pay an insurance company to protect against the theft, often of money the administrator will ultimately pay to him or herself. Those bonds typically cost somewhere around 1% of the value of the Estate, and are usually more expensive than it would have been to get the Will drafted in the first place.
A Will is a clear example of a document that is easily drafted and signed when it’s possible, but once the opportunity passes it’s gone forever. There is always the possibility that your assets will go to the exact same people via intestacy that it would with a Will, but you almost certainly will be passing additional cost and time burdens to your loved ones if you make them go through the estate administration process. I routinely counsel my clients to get the Will to save time and money, even if the result might appear to be the same either way.
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