Why you need a will

By ALAN S. NOVICK
Tuesday, November 21, 2006
Why have a will?

First, with a will, you the testator can direct to whom the assets of your probate estate, what you own in your own name alone, will go after your death. If you die intestate, without a will, your estate will be distributed according to your state's law. Such distribution may or may not be in accord with your wishes, and the statutory law is subject to change at any time by the state legislature.

Many couples try to avoid probate and the need for a will by holding all of their property jointly with each other and/or with their children. This can work. However, it can be difficult and time-consuming to make sure all the joint accounts remain equally distributed among the children. These efforts can be defeated by a long-term illness of the parent or the death of a child. A will can be a much simpler means of directing how assets should be distributed.

The second reason to have a will is to make the administration of your estate run smoothly. Often the probate process can be completed more quickly and at less expense to your estate if there is a will. With a clear expression of your wishes, there is less danger of costly, time-consuming disputes over who gets what. It is possible to completely avoid probate with a living trust, and this possibility should not be ignored in preparing estate documents. The trust can provide the same explicit directions as set forth in a will, with the same legal effect, but without the need of a public disclosure in the probate process.

The third and perhaps most important reason: Only with a will can you choose the person to administer your estate and distribute it according to your instructions. This person is called your executor or personal representative. If you do not have a will naming him or her, the court will make the choice for you.

Fourth, for larger estates, a well-planned will, together with a trust or trusts, can help reduce estate taxes.

People avoid writing wills (and trusts) due to a reluctance to consider their own mortality. But the simple act of executing a will can be very important to your heirs.

Filling out a checklist and preparing a worksheet will help you make decisions about what to put in your will. By bringing it and any additional notes to your lawyer, he or she will be better able to help prepare a will and/or trust that meet your needs.

The checklist should include financial issues and a relatively detailed list of other matters that should be considered by you and your attorney.

It is best to start by making a list of family members and any friends and charities to whom you wish to leave a specific item or cash amount. Careful attention should be paid to providing your attorney with correctly spelled names and addresses.

Next, a list of assets is important. What do you own? Think about your possessions in three general groups: (1) real estate, (2) personal belongings and (3) cash, savings and investments. List how each asset is owned _ by husband alone, wife alone or jointly.

Do you own any real estate? If so, who would you like to have it? Would you like anyone to have the right to live there, with ownership going to someone else after the first person dies?

Your tangible personal property includes anything you can touch, such as clothing, jewelry, furniture, books, silverware and artwork. Do you have any items that you would like to go to a particular person? Usually, it is better not to make these specific bequests in your will, but to include them in an advisory letter to your executor. If there are specific items about which you are completely certain and would like to include in your will, write down a description of the item and the name of the person who should receive it.

The rest of your estate is known as your intangible property. This includes things that are represented by certificates or writings such as cash, savings and investments, stocks and bonds, pension and retirement benefits and the like.

Now that you have done the preparatory work as outlined above, you must indicate who should get what and how the distribution should be made _ outright upon your death or continued in a trust for the beneficiary. If the person to whom you are making a bequest dies before you do, consider alternate beneficiaries. You may want the gift to go to that person's children or to his or her spouse. Or you may want the gift to lapse or become void and go to the other beneficiaries of your estate. All are questions to be discussed with your lawyer in planning your estate.

(Attorney Alan S. Novick is a wills, trusts and estates lawyer. E-mail estate planning questions to an304(at)aol.com.)