You’ve heard it over and over — that it’s important to write out a will.
But what if you don’t? What’s really the worst that can happen?
Plenty, depending on your situation, the personalities of the people in your life — and on the estate laws that your state has on the books. If you don’t have a will, you may want to rethink that decision.
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The main problem with not having a will. You aren’t around anymore, and without a will, you can’t weigh in on major decisions that you might like to have a say in. So if, for instance, you’re divorced, and the other parent is also not living or unable to care for your kids, the courts will decide whom your children’s guardian will be. Chances are, they’ll wind up with a competent guardian — maybe your parents? But the point is — someone else, and not you, will make that choice.
Same goes with stuff. If you have a house, a car, a large collection of old comic books or whatever, a court will decide who gets what, if the family can’t decide on their own.
“Property can go to people you don’t intend it to, people you actively dislike or people you don’t even know,” says Mitchell Miller, a Beverly Hills, California attorney who specializes in estate planning.
Miller explains the problem this way: “Inheritance by intestacy, [which is when you die] without a will, goes by the degree of relationship, not by what you want. For example, a person with no immediate family might want to give her money to charity; instead, it may go to a grandnephew she’s never heard of, let alone met.”
If you have a lifetime partner but you aren’t married, you should think about getting a will. If you have a live-in, longtime boyfriend or girlfriend, you have an excellent reason for getting a will — or for getting married, if one of you has been pushing the idea. If something happens to you, your spouse will get your assets, but a live-in partner? Not likely.
Amanda DiChello, a partner at Saul Ewing Arnstein & Lehr, a nationwide law firm headquartered in Philadelphia, says that she had a client whose life partner was killed.
“At the time of his death, he had a life partner for about 20 years, but they were not legally married. By all accounts, he and she built a life together and supported one another financially,” DiChello says. “They had no children together. His parents were alive but he had not spoken to them in 15 years because they did not approve of his relationship with his life partner, who they had a falling out with many years prior.”
The man had talked about needing to prepare a will, DiChello says, but he procrastinated.
“Because he died without a will, his lifelong partner was not legally recognized as his spouse. Therefore, under existing intestate law, his parents were deemed his next of kin,” she says.
Not only did the client not get money she would have been entitled to, she was forced to vacate her house. It was an asset of the estate, and that now belonged to her deceased partner’s parents.
“The situation was extremely traumatizing to her and could have been avoided had he simply taken the time to handle his affairs and to execute a plan which provided for her as we believe he intended,” DiChello says.
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Courts may make the right decision — and still mess up. Patrick Simasko is an elder law attorney and wealth preservation specialist in Mount Clemens, Michigan. He has seen plenty of horror stories due to people dying without drawing up a will. One of the worst — a 19-year-old inherited $750,000 from his deceased grandfather.
Sounds like a great scenario, other than the grandfather dying, but according to Simasko, it was too much money at a young age. With seemingly all the money in the world, the 19-year-old purchased some cars, houses and — drugs. The 19-year-old got in trouble with the law and then became a client of Simasko’s. But there wasn’t much Simasko could do for the young man, who was too far into his new lifestyle to really accept help. Addicted to heroin, the young man eventually died of an overdose.
“All of this could have been prevented if his grandfather’s will had restricted him access to the inheritance until he reached an age in which he would’ve been mature enough to handle the money,” Simasko says.
If you make out a will, make sure you get legal advice first. Gale Allison, an attorney who has an estate practice in Tulsa, Oklahoma, recommends that. And, of course, you would expect an estate attorney to urge you to consult an estate attorney before making out a will. But she makes a strong case for why it’s important. You could have a will that ends up becoming practically worthless.
“Imagine, if you will, a happily married couple,” Allison says. “She has her kids, and he has his kids. And they agree amongst themselves that they do not need a prenuptial contract because he is going to leave his stuff to his kids, and she is going to leave her stuff to her kids — and they make wills doing just that.”
Then, Allison says, the couple intermingle their bank accounts, buy a home together and basically do all the financial things you’d expect a married couple to do. Then Allison asks you to imagine a drunk driver hitting the couple one night while they’re walking their dog.
“The man groans and sighs and dies,” Allison says. “At that moment in time, legally, everything he owns passes to his wife. But she groans and promptly dies. At that moment, legally, her will controls everything. Her kids get everything, and his kids get zero.”
But, she adds, if the medics brought the man back to life for awhile, and then he died again, now his will controls everything.
“Her kids get nothing, and his kids get everything,” Allison says. “This is America, and that is the entirely silly way we deal with our property: casually, with no legal advice and generating often cruel results, particularly for the blended family.”
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Simasko seconds the need for blended families to have wills. He says he had a young man come into his office and explain how his grandfather died and wanted him to have a half a million dollar inheritance. At first, Simasko thought he had great news for the young man. Since the grandfather’s children were deceased, the young man would get the money, even without a will.
But then it hit the grandson that he was actually a step-grandson. Uh-oh.
“The step-grandchild received nothing and the entire estate went to the grandpa’s next of kin, which happened to be his nephews whom he never even met,” Simasko says.
So do you need a will? Well, no. After you’ve departed, you don’t need a will — but your family might desperately need one.
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What Happens When You Don’t Leave a Will originally appeared on usnews.com
