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December 1, 2015
A will isn’t for you; it’s for them.
When the time comes, and it comes for all of us, will your family have the luxury of grieving in peace? Or will they, instead, be burdened with the duty of sorting out your estate because you never got around to making a will?
You can make your own decisions and leave a will, or let the state do that for you later. It’s one or the other, and you’re the only one who can decide right now.
No one likes to think about end of life planning, but sooner or later someone’s plan will come into effect. More than likely, your plan will match your wishes a lot more closely than the state’s.
Why a Will is So Important
If the idea of making a will seems morbid, you’re not alone. That’s one of the top reasons LegalZoom lists for avoiding the subject altogether. Even people who know its importance still put off the task for another day. Nobody likes to think about mortality.
But without a will, you have absolutely no say in what happens to your estate. More than that, neither does anyone else. Nobody except for the state, of course.
You might trust your family to do the right thing. But the state’s probate procedures override everything else if you die without first creating a valid will.
A valid will is one that’s executed the right way according to your state’s laws.
Testate Versus Intestate
Testate means that you have a valid will, and intestate means the opposite. Dying testate means that your last will and testament will go through probate. A judge will oversee your personal representative as he closes out your estate, and your wishes will be carried out the way that you decided long ago.
Dying intestate means that the state’s laws of intestate succession take over. Nothing that you might have wished will happen unless your wishes somehow align with the state’s.
Your spouse might, or might not, inherit all of your property. Without a spouse, it follows a specific chain of distribution to immediate family members. With no family members, everything that you own goes to the state. And if you live in one of a few states, your spouse might only get the predetermined spousal share, while the rest automatically transfers to any children that you have.
Even if you’re single and young, you still need a will.
How to Overcome Avoidance
It’s natural to think about anything and everything else except final planning. Some people just don’t believe that their belongings and how they want to spread them around is anyone else’s business. And they’re right, at least until death. Then it becomes the state’s business.
When you think about privacy and your will, remember that it’s not about telling a lawyer what you have and who you want to leave it to. Your lawyer truly has no interest in your personal belongings or how much money that you have.
Creating a valid will protects you, your family, and your loved ones. And while you can create one on your own without a lawyer, there’s so much that could go wrong. It’s not always the best route to take.
Creating a Valid Will
Each state has its own Probate laws. Only about 18 states have adopted the Uniform Probate Code, says Cornell University, and some of those have made major alterations. That means while most states are similar, you probably don’t know your state’s laws as well as you think.
That’s why you need an attorney. Some people unfortunately think that a handwritten (holographic) will witnessed by one or two people is plenty. But the rules governing holographic wills vary by state. And if it’s not executed in exactly the right way, the probate judge will decide that it’s invalid. Then it’s back to square-one with intestate succession.
As for a last-breath declaration or a deathbed will? Not every state acknowledges those in the same way, says LegalMatch. Some states only allow a certain dollar amount to be covered, and they are the easiest wills for anyone to dispute in court.
A will is not a legal document until the time of your death. Until then, it’s a potential legal document. In the meantime, you have all of the power to draft a will, change it, change it again, and ultimately decide how your estate will be distributed when the time comes. But if you wait too long, the state will take over.
Wills are only one part of estate planning. Like retirement planning, you have lots of options, and you’re in charge of deciding what’s best. Even if you don’t have a vast estate, you still need to exercise your right to decide what happens. That way, your wishes will be fulfilled and your friends and family won’t have the undue burden of sorting out your affairs.
If all of this seems overwhelming, you’re not alone. But NewRetirement can help. Check out our estate planning resources to connect with professionals who can guide you through creating a will that can stand as valid when needed. That’s peace of mind for you now, and for your loved ones later.
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