Friday, September 23, 2011

Ask a Lawyer - Why do I Need a Will?

This is the second in a long-winded three part answer to the question, "Why Should I Hire a Lawyer to Help with My Estate Planning?"  In Part 1, we talked about estate planning generally and why it is important.  This post will address the issue of why it is important to have a will, and the tangential question "what happens if I die without a will?"  Finally, the last part of this series will answer the question implied in these questions - "Even if I need a Will, why shouldn't I just do it myself, or order one off a website?"

Hopefully most people know that a Will is a legal document that allows one to state their wishes for what happens to their assets when they die (excluding certain non-probate assets, such as life insurance) and who manages their estate.  A Will can also designate who will serve as guardian for one's children.  Wills are often drafted in conjunction with trusts to provide additional safeguards for management of assets and to avoid paying excess taxes.  To be legally enforceable, the Will must meet legal requirements, which vary by State.

To understand the value and importance of having a Will, it is helpful to consider what happens if you die without a Will, and how you might wish to change the "default" rules to benefit your loved ones.  The default rules vary by State law, so the following analysis reflects Illinois law.
  1. Default Distribution of Assets - By law, your surviving spouse will get 50% of your estate and your children will equally split the remaining 50%.  The vast majority of people I talk with would like the flexibility to change this in some way.  For example, you and your spouse may wish to leave the entire estate to each other if your spouse survives you.  Or you may wish to leave a gift to your church or favorite charity.  
  2. Guardianship - If you are married and your spouse survives you, your spouse will remain "guardian" of your children, that is not the issue.  The issue occurs in the event that both spouses pass away, for example in a car accident - who then takes care of the kids?  If you have no will, a judge will make that decision for you, based on his/her view of what is the best interest of the children.  The judge may or may not get it right, and may or may not pick the same person as you would have designated if you had a Will.  Furthermore, without a will, the guardian will be required to report to the judge an accounting of how money in the estate was spent for the children.
  3. Executor - With no Will, you lose the right to choose who you would want to manage your estate.  
  4. Trust Planning - With no Will, your children will gain full rights to their shares of your estate when they turn 18.  By including a trust in your estate plan, you can ensure that your children's health, maintenance, and education needs are provided for first.
  5. Waiving Surety/Bond - By default, courts require  performance bond be posted as security to ensure that the guardian acts in the best interest of the child, even if that person is your spouse.  You can save this cost by simply waiving surety in your Will.  This value alone will easily more than pay for the cost of the Will.  
  6. Tax Planning - You lose the opportunity to consider your options for reducing taxes due on your death.  
In short, EVERYONE should have a Will, which should provide for your personal financial and family situation.  As an attorney, I believe the cost is easily worth the value and benefit of working with a qualified, licensed attorney.  But more on that in the next, third part of this series.  

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