Where there's a will...

More than half of all Americans don’t have a will* (in legalese this is called dying “intestate”).  When I heard this I wondered why.  After an informal survey of my own I learned that many people don’t think they need a will because they’re “not rich.”  Well, I practice Estates & Trusts law specifically for the “average family”, so I thought about the reasons those people (i.e., you and me) really do need to have a will.  Here are the top 5 reasons why everyone needs a will…

1. Who gets your stuff?  If you die without a will the State decides who gets your stuff.  In Maryland, if you have a spouse and children the assets are split between them and that can mean substantial assets going straight to your minor children – yikes!.  (See Md. Code. Ann. Estates & Trusts 3-102). If you have a spouse, but don't have kids yet, your spouse has to share your assets with your parents.  Even more frightening is the fact that if you are unmarried without children the State may take your assets for itself.  That’s right.  Take my cousin for example.  She is an only child, is not married, and has no kids of her own yet.  If she outlives her close relatives (parents, grandparents, me), her assets go to the Board of Education or Department of Health and Human Services.  Her car, her bank account….everything.  (See Md. Code Ann. Estates & Trusts 3-105)She is a teacher so maybe she doesn’t mind supporting the Board of Education in that way, but I think most of us would like a choice in the matter.
2. Do you have any special gifts in mind?  Your will allows you to determine exactly how you would like to distribute your assets.  Perhaps you want to leave money to charity.  Or, maybe you do not wish to divide your assets evenly among your children because you already gave significant financial support to one during your life.  And, if you want to be sure that treasured family heirloom makes it way to a good home, your will is the place to do that.
3. Who gets your kids?  If you have young kids, your will is the document you use to determine who should care for your kids if you die.  If you die without a will and you have a spouse who survives you (assuming for now that your spouse is also a parent to your children), he or she will be automatically made the guardian of the children’s person, but not necessarily their property (and they may have significant property because you died without a will).  A court will need to step in to appoint someone (hopefully your surviving spouse) as guardian of the property.  Having a properly drafted will with guardianship provisions can avoid this hassle and expense.
4. Who should manage your estate?  Your will assigns a person to serve as your “personal representative”.  This person will have a lot of responsibility in administering your estate.  He or she will divide and distribute your assets, pay necessary estate taxes and debts out of your estate, file regular papers with the court and Registrar of Wills, and respond to inquiries from creditors.  Without a will nearly anyone can petition the court to be appointed as your representative and fights can often brew over who should hold such a position.
5. Who gets the house?  If you own real estate, things can get a little tricky after you die.  Without a will, the State attempts to divide up your assets (as it sees fit) and that may mean that a lot of people get a “share” of your home.  This can include your minor children, your parents, etc.  And, this can happen even if you have a surviving spouse because the State splits your assets between your spouse and your children or your parents.

Don’t let the default rules of the State determine what’s in your family’s best interests (and even worse, don’t let the State take your stuff!).

You can’t prevent dying, but you can prevent dying intestate.

*This statistic comes from a Harris Interactive (nasdaq: HPOL) survey of the general population, done for lawyers.com.