Every Adult Should Have a Will
My wife and I had a baby last year. Since we are first generation immigrants, both our parents live back home and we do not have any immediate family in the states either. Once we had the baby we started getting worried about who would get the guardianship of the baby if something were to happen to both of us. The last thing we would want is for our precious baby to be taken away by child care services and put into foster homes. So, I started doing a lot of research on how we can ensure that our baby gets assigned to the guardian of our choice and that all our assets get transferred over to the baby. Through my research I found out that a will would be the appropriate legal vehicle to appoint a legal guardian for our baby and to ensure that all our assets get transferred to him.
What’s a Will
A will is a legal document that lets you outline how you wish your assets to be distributed upon your death. It also allows you to appoint a guardian if you have minor children. After your death, the probate court will use the will as a guideline to settle your assets.
If you die without a will, you would have died “intestate” and the so called intestacy laws would kick in. The intestacy laws vary significantly from state to state and depending on the state you live in, the probate court would decide how to distribute your assets after your death without regard for your dying wishes or the needs or your heirs.
Here are some common legal issues when you die without a will.
It’s a typical misconception that all your assets pass over to your spouse after your death. But, you will be surprised to know that, it’s not always the case. Only a few states have intestacy laws that allow your spouse to inherit all your assets if you have no kids outside your marriage with this spouse. In most of the states a third to a half of your assets may go to your spouse and the rest is divided among your kids. In the case of life insurance policies and accounts such as 401(k) and IRA where you have named a beneficiary the proceeds will directly go to the beneficiary, or in the case of joint accounts the proceeds will directly go to the surviving owner. So, if you don’t have a will yet, at least make sure that you have elected appropriate beneficiaries for all your retirement accounts and life insurance.
Alternatively, you can also disinherit someone through a will. You can disinherit a child or a spouse if you wish. However, if you would like to disinherit a spouse, you will need to be aware of the laws governing your state, whether it be a common law state, community property state or an equitable distribution state. A person can only disinherit a spouse in a community property state.
Guardianship Of Minor Children
Anyone with minor kids should absolutely have a will. Through a will you will be able to appoint a guardian for your kid in case anything happens to both the parents. If a guardian is not appointed at the time of death, your surviving family will have to seek help in a probate court to have a guardian appointed for your children. The person appointed by the court may not be whom you would have wanted to be entrusted with your kids. if you have several family members you can list the order in which you would like the guardianship of your kid to be assigned. So, in case the family member who is your first choice is not able to take guardianship of the kid due to some reason, the court knows who the next in line is to assign the guardianship of the kid. In my case, I do not have immediate family members in the country. So, I have decided to assign one of my friends as a guardian and he would in turn be able to then ensure my kid is transferred over to my parents who live back home.
Financial Inheritance By Minor Children
Without a will your assets might immediately be awarded to your minor children. Can you imagine a five year old having hundreds of thousands of dollars. Though a will you can state when you would like you assets distributed to your kid. You can set it up so that your spouse manages the assets until the kid is of legal age and the kid gets the assets when he/she is of legal age.
How Do You Draft A Will?
Duh….why would anyone ask such a dumb question. A will is a legal document, so one would think that you need a lawyer to draft a will. This is a common misconception.You can obviously go to a lawyer who would help you draft a will. A standard will drafted by a lawyer could cost you anywhere from $300 – $500. However, since wills are such common documents there a several other inexpensive ways to draft a will.
- You can download a standard template from the internet to fill out a will. You can use the standard template in this link based on your state of residence and get a will drafted in less than an hour for free.
- You can use a software such as Quicken Will Maker or an online service such as Legal Zoom. This will cost you about $50 – $100.
What Makes a Will Legal?
In order for a will to be considered legal the following requirements must be fulfilled.
- The Will must be signed by at least two witnesses. Witnesses typically must be people who won’t inherit anything under the will.
- The will must be signed and dated by the grantor
A will does not have to be notarized. However, if you and your witnesses sign a self-proving affidavit before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.
This affidavit provides an extra layer of security, after your death in case the will is questioned by a family member or a third party.
A will does not have to be recorded or filed with any government agency. Just keep the will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is. It would also be good to distribute a copy of your will to your attorney.
Steps To Take To Execute The Will
After a persons death in order to execute a will, the executor must typically file the will with a probate court. If everything is in order, the court issues a grant of probate. This document allows financial institutions and other organizations such as the Land Title Office to rely on the will as being the last will made by the will-maker.
A will is an effective in estate transfer, appointing a legal guardian for minor children and other legal proceedings after death, but it comes with it own drawbacks. For instance, your estate will become part of public record, and anything left by a will must go through probate court. Also, probate attorneys can be expensive and cannot be avoided. In some instances you could loose up to 2% – 4% of your assets due to attorney fees and court cost. A Living Trust is another common method used by people who have several assets and would like to avoid the expensive and time consuming probate process. I will provide more details of a trust in a separate article.
Even with the drawbacks listed above a will is still an effective method in estate planning and every adult should minimally have a will. Creating a basic will takes about an hour and it’s a time well spent if you really care about your loved ones.