It’s a misconception that only wealthy people need wills; every adult should have one. In some circumstances, such as when they’re beneficiaries of certain trusts or have significant assets of their own, even children need a will.
Married couples should each have a will. If only one spouse has a will and they both die in a common disaster, or within a short period of time, the effect might be the same as if neither had a will.
A will is the only means by which you can exercise control over who gets what, and when, when you die. If you die without a valid will the law will determine who gets what and when. And we all know how good, efficient, flexible and compassionate government bureaucrats can be. Minor children could be hit particularly hard if the government has to take over. A court-appointed official guardian would be a poor choice of administrator compared to a loving relative or friend. The relative or friend will know a lot more about your family circumstances and what your wishes would be than any official guardian ever could.
Another misconception surrounding wills is that it might be cheaper to die without one than to incur the cost of having one drawn. That’s rarely, if ever, the case. Higher legal fees will likely be incurred by dying without a will than in having one done. Also, in a large estate, the tax cost of dying without a will can be devastating. Be sure to consult a qualified lawyer. The law doesn’t require it, but it’s false economy in the extreme to draw up a will without legal advice, no matter how simple and straightforward your affairs seem to be.
Even though dying without a will is about the most inconsiderate thing you can do to your survivors, you should also be aware that what’s in your will may not be the final word.
Wills can be contested, and many are. If a deceased person hasn’t made adequate provisions for the proper support of any person dependent on him or her, that dependent, or a representative, can apply to a court for proper and adequate support. Dependents include a spouse, parents, children, grandchildren, brothers or sisters who were dependent on the deceased immediately prior to his or her death and, in some jurisdictions, common-law spouses and perhaps even ex-spouses.
Many parents include provisions in their wills outlining who they wish to have control and custody of their children in the event that both parents die, for example in a common disaster such as a plane crash or automobile accident (or, for that matter, in a luxury liner capsizing). Although this is a wise thing to do, and a court would certainly give considerable weight to the expressed wishes of the deceased parents, you should remember that the terms of a will are not binding when it comes to guardianship or custody of children. A court always has the authority to look through any document when the welfare of a child is at stake. Even so, it still makes sense to set out in writing your wishes regarding guardianship of your children, either in the will itself or in an accompanying letter.
If you’re still not convinced about the importance of having a will, how about this: having a will may be the only way you can disinherit someone. Even though a will can be contested there’s no guarantee of success.
Another thing to remember about wills is that any time you move from one legal jurisdiction to another you should have your wills reviewed by a lawyer at your new place of residence. Local laws may negate some of the provisions of your existing will and revisions may be in order. For example, in most jurisdictions marriage immediately nullifies a will whereas divorce may not. There might also be jurisdictional family law provisions that will override your will. Actually, your will should be reviewed with your lawyer any time your circumstances change significantly.
Next week, choosing your executors.