We feel that it is important for clients to have wills. No matter how simple or complicated your estate, it will definitely benefit from a well-thought-out will. A will saves your loved ones time and expense after you are gone. Below are some key facts that lead one to this opinion.
Probating a will is a simple, quick, and inexpensive process. One common misconception is that not having a will makes things simpler, because it avoids probate and taxes. It does not. First of all, the lack of a will does not necessarily avoid probate. Second, estate tax is determined by who inherits and the size of the estate, not whether it goes through probate.
In addition, many people think that probate is a time consuming and expensive process. It is not. It is simply the process of proving a will’s validity after your death, and involves filing the will and the death certificate at the clerk’s office in the county in which the testator last resided. A fee is paid, and Letters Testamentary (documents that give authority to act to your executor, the person you designate to handle the affairs of your estate). The opening of an estate can be done electronically in most Indiana counties, which reduces the amount of time required to begin a probate matter.
Having a will saves your loved ones expense. If you should die without a will (or “intestate”), a bond must be posted to make sure that the estate is administered properly. The annual premiums on that bond during the administration of your estate will most likely be significantly more than it would cost you to hire a lawyer to prepare a will that relieves your executor of that responsibility.
A will insures that your estate will be handled in the manner you want it to be.
A will is a set of instructions for the distribution of your assets upon your death, and the only way to make sure that those assets are distributed according to your wishes. If you leave no will, the State decides who will represent your estate and a set of laws called “Intestate Succession” determines who gets what. Under that law, nonfamily members cannot inherit, and if no one survives you that can, all of your property will go to the State of Indiana.
What if you have children from a prior marriage that your current spouse has not adopted? If you die intestate, your spouse may get everything. If your spouse subsequently dies without a will, your children will not be provided for.
Another problem arises if you have minor children. First of all, who will take care of them if you die without your spouse surviving you? Only through a will can you name a guardian to take care of your children. Second of all, what if your minor children are the only ones that stand to inherit because your spouse died before you do? Without a will that sets up a trust for those children and names a trustee to look after it, you can only imagine the litigation that that can lead to, with people fighting over who should take care of the children and who gets control of their money.
A will can help even if you just want to pass your estate to your spouse. Many people think that, since they want everything to go to their surviving spouse, they don’t need a will. Although intestate succession would insure that it went to your surviving spouse, what if you both die within five days of one another or together in an automobile accident? Under the law, that would cause a bit of confusion as to which direction the assets go. Does it all pass to the husband’s estate or to the wife’s? Or did they truly die simultaneously, and so it goes to the children, and they are minors!
What if you have filed for divorce, receive an inheritance of your own, and then die before the divorce becomes final? Your spouse could then obtain property that he or she might not have been entitled to in the divorce.
A will is simple to change and modify. Some people think that having a will sets things in stone and involves effort to change. Not so. Simple changes, such as the name of an executor, guardian, trustee, or heir, can be affected by a codicil. This is a document that refers to your will and sets forth specific changes to its text. The two should be kept together at all times.
A commercial will kit is no substitute for a will drafted by an attorney.
Will kits are prepared so as to be used in all fifty states. Therefore, problems can arise from the inevitable differences in the laws of each state, and even one mistake could lead to the expenditure of time and money by your loved ones, especially if the mistake prevents your will from being probated! Also, you may not know the tax consequences to your estate, and thus not plan it properly in order to maximize your family’s inheritance. After all, if you can’t take it with you, why should the government get it?
You can see that the advantages of having a will are greater than the disadvantages. It is worth the time and money to make sure that your family will be taken care of when you are gone.