In parts 1 and 2 I discussed why everyone should have a will, and what happens if you die without one. In part 3 we are going to dive into why you would want to have a will drafted by an attorney, instead of writing your own or using a form-will.
Anyone can write a will. In fact, there is a type of will recognized by the law called a “holographic will,” which is a will written entirely in a person’s own handwriting and signed by them. Normally, a will needs to be signed and witnessed, but the holographic will does not need to be witnessed. A person can type up a will, sign it in front of two witnesses, and have them sign as well, and the will is likely valid. Similarly, nothing makes a form will invalid, per se.
So, what’s the problem? Wills written by non-attorneys tend to have a few major problem areas: vagueness, gaps, contradictions, and a failure to take the law into account. When an estate law specialist writes a will for you, they are drawing upon extensive experience with the abstract legal concepts that govern wills, and the pitfalls and problems that surround them.
Often, homemade and form wills will work fine in most circumstances, but do not cover important contingencies that an estate lawyer can help you think through. They may not cover important technical and procedural elements — like whether or not the executor needs to be bonded for the value of the estate, and what rules will govern the executor.
Or there may be areas of a will where the outcome is uncertain or confusing if different contingencies come to pass. An estate lawyer will make sure that your will is clear, unambiguous, detailed enough to deal with most major contingencies, and copes with the technical and procedural requirements of the state you live in.
A well-drafted will simplifies the administration of your estate. A problematic will makes those problems worse. If your will is unclear, contradictory, or incomplete, it is an invitation to conflict between your loved ones and the risk of litigation escalates dramatically.
One of the best gifts you can give your heirs is a well thought out estate plan, consisting of properly prepared documents, that serve the specific circumstances of your life and your family. The cost of the will is dwarfed by the potential savings after your own passing to those you care about the most.
If you would like to learn more about wills and estate planning, contact my office today to schedule a free consultation.
If you die having made a will then your heirs will enter the probate process. In probate, the will is submitted to the Surrogate’s Court for approval, and then the Executor — the person appointed to see to your affairs after your passing — is issued “letters testamentary” which empower that person to access and distribute your assets. There is some more to the process than that, but it is fundamentally straightforward — provided you have a properly written and executed will.
In contrast, if you do not have a will, you die “intestate,” and your estate enters the process of “estate administration.” Estate administration is much more difficult at every turn and ripe with opportunity for conflict among your heirs. Estate administration will also be more onerous financially. The Court will be involved in your affairs in a much more substantial way. Unless your estate is very small, your Administrator will be involved with the Surrogate’s Court from beginning to end. He or she will need to provide accountings to the Court. Your Administrator will need to secure a surety bond for the entire value of your estate. The complexities of administration are quite likely to demand the assistance of an attorney, whereas the probate process is far simpler. Even if your Executor needs the assistance of an attorney, the cost in legal fees will most likely be much less in probate.
Even more importantly, if you die intestate, you then have no control over how your estate is distributed. Your heirs-at-law will inherit from you by the statutory scheme — whether you like it or not, and whether it makes sense within the context of your life and your family.
The issues presented by intestacy thrust an unnecessary burden upon your heirs at a difficult time. Making a will is the “ounce of prevention” needed to avoid the “pound of cure” that estate administration easily becomes. By making a will, you are taking responsibility for your affairs upon yourself — and alleviating much of the burden from the loved ones you leave behind.
In part 3, I will discuss why it would behoove you to have an attorney draft your will — rather than writing your own or printing one off of the internet.
Be sure to like my Facebook page and/or subscribe to my mailing list so that you don’t miss any important information, and I hope you will join us at the Sparta Public Library, this Thursday, October 14, at 1:00 for an in-depth discussion of wills.
The primary goal of estate planning is not tax reduction. While tax reduction can be an important aim, the primary goals of estate planning are the expression of each individual’s autonomy, and conflict reduction. It is generally in no one’s interest for there to be conflict in an estate, not at all on a human level, and almost certainly not on a financial level.
With careful estate planning there is no reason that there should be conflict over your estate. Most estate related conflict is avoidable, and the most important tool in estate planning is the will. No matter what your other goals are, they can generally only be accomplished if you also avoid a high-conflict estate administration.
A last will and testament is each person’s last opportunity to express (in material means) their values and their wishes. As each person and each family is different, what each person will make of that opportunity will also be different. Therefore, it is crucial to understand what the situation will be if you do not have a will.
If you die intestate, that is, die without a will, then your estate (your legal and financial self) will be wound down by operation of law — which may or may not match what you want. The law of intestacy is a complicated bit of law, but it is an attempt to treat people fairly — inasmuch as we can make predictions about what family relationships are going to look like — which is of course impossible.
When you express yourself through a will, you are taking ownership of what is to become of you after you die. The consequence of not having a will, or potentially worse, having a dubious will, could be conflict among the people that you care about.
In Part 2, I will discuss the laws of intestacy and more about the potential pitfalls and difficulties of not having a will. Be sure to follow me on Facebook and subscribe to my mailing list so that you do not miss out on any important information!