Though some advisers pooh-pooh it, a will can avoid big problems
By Rosie Wolf Williams for Next Avenue
You might have heard that Prince died without a will, which has already led to a flurry of legal maneuverings over his estate. But do mere mortals like the rest of us, with far smaller net worths, really need a will?
Traditionally, the answer to that question has been an unequivocal “Yes” — particularly if you have a spouse, children or stepchildren. Lately, though, some financial advisers have been saying that many Americans might not need a will. New York Times “Wealth Matters” columnist Paul Sullivan wrote about that provocative view in his article, “Prince Needed a Will, But Maybe You Don’t.”
What a Will Can Do for You
“Certainly the simpler you are, the less of a complex estate plan you need,” says Jeffrey Greener, attorney and partner at the law firm Rivkin Radler in Uniondale, N.Y. “But very few people are simple. If you have minor children, only a will names a guardian for those children. A will or a trust will allow you to name someone to watch over assets for a disabled or elderly family member or someone who may not have the financial sophistication to manage those assets.”
You may think that if you have made beneficiary designations on your life insurance policies, property deeds or retirement accounts, you’re covered. Well, it’s true that those designations will ensure that the right people will receive benefits or inherit the assets on those.
But who gets the car or Great Aunt Sophie’s tea set? Or what if you want to bequeath part of your estate to the local animal rescue society? Cases like those are where a will is essential.
Family Split Over a Spoon
“When a member of your family dies there’s a lot of emotion involved, and I have seen families split apart over a spoon,” says Tim Estes, CEO and founder of Estes Financial Services in Fort Worth. Two sisters wanted possession of a single spoon that had been in their family for generations. “One sister got the spoon, and the other didn’t. They haven’t spoken for 15 years.”
When someone dies intestate — without a legal will — the estate goes into probate, a judicial proceeding that decides the rightful heirs and the distribution of holdings. Going through probate can eat up more money than the cost of creating a will, or offer a less-than-perfect split of assets.
For many families, wills can fill in the gaps of property assignment or beneficiary claims on life insurance policies.
All About Family Dynamics
“You have blended families, second marriages. Mature couples might cohabitate after a divorce or death of a spouse. You may want to provide for that spouse or significant other, but when that person is gone, reroute those assets back to the children from your first marriage,” explains Greener. “I don’t want to throw out the assertion that a will is always necessary, but people have to be realistic about their family makeup, their needs and where these assets may go.”
Greener says it’s all about family dynamics.
“What’s fair is not always equal, what’s equal is not always fair,” he says. “Maybe you have to treat your children differently. Maybe you have one child who lives here and one child who lives elsewhere so you add the nearer child on all your bank accounts for convenience purposes — even though your idea was to leave everything 50/50 to your children. Then [when you die], all those jointly held assets, in-trust for assets or payable-on-death assets pass to one child. The other child gets nothing. That wasn’t necessarily the parent’s intent and there are fights over this all the time.”
A will can include a no-contest clause, which will prevent potential heirs from arguing over its contents. “Frank Sinatra put a no-contest clause in his will because the [total value of music rights] that he owned was probably worth $500 million. If they squawked or balked at anything, they were out. They got bupkis,” says Estes. “If there’s any kind of an estate, I recommend including a no-contest clause, just to keep the peace and harmony.”
Where You Live Matters
Which state you live can make a big difference here. Estes notes that in community property states such as Texas, your surviving spouse will only inherit all your community property if all your children are also the children of that spouse.
“Otherwise, your one-half interest in your community estate will pass to your children. If there is any kind of animosity or resentment, they can conceivably force her to sell the house and boot her to the curb, because they own half the house,” says Estes.
For snowbirds, if you leave no will behind, that second home or RV could be governed by its location. “When people die owning property in more than one jurisdiction they must be aware that the state in which the property lies will control its disposition,” says Greener.
Taking Care of Your Pets After You Die
Without a will in place, your beloved pet could end up in a shelter after you die, if no one comes forward to accept the responsibility of care. A will can designate a responsible party and allow a smoother transition for the animal.
“Sometimes we create formal pet trusts within a will,” Greener says. “You want to be able to provide for them financially and make sure they have a caregiver.” He recently created a trust for a client’s horses and dogs. “He has rescue dogs and wants to make sure that they go to a stable and loving home. We allowed for different people to be in charge of his pets because they have different needs and different desires,” Greener says.
Helping Your Elderly Parents
A will could also help your elderly parents avoid losing government benefits if you die before them. If they’re beneficiaries of your life insurance policy, a large payout from it could wind up putting a stop to their government benefits unless you put a key provision in your will.
“Let’s say my parents have limited resources and they may be getting government benefits. If I leave them a gift outright, it may jeopardize their government benefits, the same way if I have a disabled or special needs child [because their newly boosted income will disqualify them],” says Greener. A will can direct the terms of policy distribution so your parents receive it as a series of payments instead of a lump sum.
An estate plan is not just about passing your wealth to your loved ones, notes Greener “It’s about providing for independence and control as we age. I think you can never go wrong by having these documents in place.”