Do You Really Need a Will?

Filed under: Estate Planning

Have you had a will prepared yet? If you’re like 58 percent of Americans, you haven’t bothered to create this basic, but very important document. While having a will does not avoid the probate process and is only one part of a properly designed estate plan, it provides some very important information and evidence of your intent.

A properly drafted will names guardians for minor children, disinherits ex-spouses, names the person or persons you wish to help administer your estate if a probate proceeding is required, and allows you to decide where and when your assets go upon your death.

It is a common misconception that when you die, your spouse (or children) will automatically receive everything in your estate. Because doing nothing is the path of least resistance, many Americans do not see the point of writing down their wishes.

Unfortunately, pursuant to California probate law, that’s not the way it always goes. If you die without having created a will, the laws of intestate succession will determine who inherits your estate and in what percentages. In California, your spouse will not automatically inherit everything. The estate could be divided between your spouse and surviving children, which may or may not be what you wanted.

If your children are still minors, your spouse will be burdened by the chore of maintaining separate funds for each child. If your children are grown, dividing the estate this way could leave your spouse without adequate income in retirement. Further, you may want to benefit one child more than another child based on their success as adults, age, or special needs.

If you aren’t married and don’t have children, the situation becomes even more clouded. Unless you have surviving parents or siblings, your estate could be transferred to distant cousins or even escheat (revert back) to the state of California. Moreover, you may wish to leave your property to someone else instead (e.g., a close friend or romantic partner), but this will not happen unless you specify your wishes within a will.

In other words, if you want to be in control of how your assets and property are divided and ultimately distributed, you must prepare and properly execute a will containing specific directions and evidencing your intent. Don’t make assumptions about the future of your money, your spouse, or any other heir. Take the time to consult with an estate planning attorney, and discuss the various options for ensuring that your final wishes will be honored and your family, friends and loved ones are protected.

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