Why You Need a Will

Learn why everyone should have the most basic estate planning document: a simple will.

Nolo

Many people wonder if they really need a will. They may think that they don't have enough assets to bother with a will. Or that they don't need a will because they're not yet elderly. However, a will is a good idea for just about everyone. Read on for some of the reasons you might want to have a will.

What Exactly Does a Will Do?

First things first. What is a will anyway? A will is a document in which a person declares what she wants done with her property at the time of her death. A will has no effect until the person who wrote it, known as the testator, dies. The testator can also revoke a will at any time prior to her death.

If you die without a will, the state will decide who gets your property. Each state has intestacy laws that establish an order of priority among your heirs. These laws might achieve exactly what you wanted anyway. Then again, maybe they won't. Most people prefer not to put things to chance.

Why Should You Have a Will?

Do you need a will? Wills can accomplish the following.

1. Wills Can Name Specific Inheritors for Specific Property

If you die without a will, state intestacy laws will provide for how the sum total of your property is to be divided among your heirs. But state laws can't dictate who will get certain specific items of your property. This can lead to many problems. For example, say you intend to pass your grandmother's wedding ring on to your daughter. If you die without a will saying that's what you want, your son may feel very strongly that his wife should have it. So even if you don't have a lot of assets, you may still be interested in making sure that certain items of your property go to the people that you want it to. You can do this with a will.

2. Wills Name a Guardian for Your Minor Children

If you have children who are not yet adults, you really need a will to:

  • name a personal guardian, and
  • name a property guardian.

A will can name a personal guardian for your children—someone to take care of your children if you die while they are still minors. If you don't name a guardian for your children, it will become a matter for the courts. While courts will try to make the best decision for your children, they simply don't know your children or family circumstances well, and very few people feel comfortable leaving this decision in others' hands.

In addition, your children will likely also need a property guardian to manage any property they inherit. Again, you can do this in your will. If you don't name a property guardian, the probate court will have to set up a conservatorship to manage your children's inheritance. That means a judge will decide who manages your children's money. And when each child turns 18, the child will get all of the money they inherited, whether they can handle it or not. (These days, many people consider 18 to be rather young to handle large inheritances.) With a will, you can decide who will manage your children's inheritance on their behalf and you can choose the age at which you want it to be distributed to them.

3. If You Want to Disinherit Someone, You'll Need a Will

If you want to make sure that an estranged relative receives nothing or very little from you, you'll likely want to make a will in which your exact wishes are clearly stated. For example, if you have three children but don't want to leave much to one of your children, you can create a will to this effect. If you died without a will and your children inherited your property, it would be divided equally among them. (But note that you often can't disinherit spouses.)

4. You Can Name an Executor in Your Will

The person who ushers your property through the probate process is called the personal representative of your estate. You can name a trusted person to this role, called an executor, in your will. If you don't, the probate court will appoint an administrator.

5. A Will Makes the Probate Process More Simple

Whether you die with or without a will, your property will have to go through the probate process before it can be distributed to your loved ones. But if you have a will that clearly states your wishes, the probate process will be a little simpler.

On the other hand, there are a few things that can't be accomplished with a will. See What a Will Won't Do.

Common Misconceptions About Wills

Whether Wills Trigger the Probate Process

A misconception about having a will is the notion that simply having a will causes your heirs to have to go through probate, and that it will be difficult and expensive.

While it's true that probate can be time-consuming and expensive, the probate process will be necessary even if you die without a will; the probate court is still going to oversee the distribution of your assets to your heirs. There is absolutely no reason to think that this process is made easier or less expensive by your not having a will. In fact, as mentioned above, it will probably be more expensive. For one thing, whoever administers your estate will probably have to post a bond that protects the estate if you don't have a will. (If you do have a will, you can provide that your executor will not have to post a bond.)

If you'd like to avoid probate, there are other ways to avoid probate, for example by creating a living trust.

Whether You Should Make a Will for a Small Estate

Another misconception is that you don't need a will if you don't have much property. Even if your estate is small, there are good reasons to have a will, such as the ability to state specifically who gets what. In addition, if you have children who are minors, you should absolutely make a will, regardless of how much property you own.

At What Age You Need a Will

A common way of thinking about wills is that they are needed only when you reach a certain age. Many people ask, "When should you make a will?" But there isn't really a specific age when a will becomes necessary. If you have young children, you'll want a will, regardless of how old you are. And because tragedies happen and anyone can die unexpectedly, having a simple will in place can be beneficial, even if you're not yet at an age when you think much about death. Of course, if you're elderly or have a serious illness, the task of making a will can be more urgent.

How to Make a Will

You can create a will online or using software on your own. It can be done in a couple hours for under one or two hundred dollars.

If you're not comfortable creating these documents on your own, you can see an attorney who practices in the area of estate planning. This attorney can also help you decide if you need more advanced estate planning techniques, and help you implement an estate plan that is best suited to your needs. Keep in mind, an attorney will charge at least $1,000-2,000 to help you accomplish your estate planning goals.