Do You Really Needs a Will?

People who hear me speak, acquaintances and even clients often ask whether they really need a will, or if the law will accomplish what they would have put in their wills anyway.

Richard Sayre, a Certified Elder Law Attorney, wrote an excellent article on this subject in the most recent issue of the American Bar Association’s BiFocal publication. As Mr. Sayre says, if a person lives in a Community Property State, and all of his property is Community Property, and he really desires to leave everything to his spouse, there is technically no need to prepare a Will. But if that person has children from a previous marriage, or if he owns some separate property, the law may divide his assets, or direct separate property to his spouse, in a way that he did not intend.

It is also important to consider what would happen if your spouse dies before you do, or if both of you die together. In most states, the law would require that all of your assets be divided equally among your children. If any of your children are under age 18, the Probate Court would appoint a guardian to manage those assets until the child turns 18. If you have designated someone in your Will to be your child’s guardian in that situation, the Court will generally appoint that person.

With a properly drafted will, you can also create a Trust for the benefit of your children, which will come into effect at the time of your death. In this way, you can not only designate who will manage those assets, but you can also include conditions that go beyond what the law would provide, for example by directing that the assets stay in the Trust until your child turns 25.

Another good reason to draft a Will to create a Trust is if your spouse or a child is disabled. This will enable you to identify a person to manage the assets for the disabled individual. If properly drafted, this can also assure that the disabled individual will continue to qualify for public benefits.

These are just a couple of examples of situations in which the creation of a Will will help you continue to care for your family in a way that the law that defines who gets your assets when you die are not able to do so.

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