More than half of all adult Americans do not have a Will. Why? Well, about a third of men feel like they do not need a will, while one in four women blame costs for not making a will.
In this post I will suggest a few groups of people that really should consider a will.
What if I don’t have a will?
When you die without a will, that is intestate, then State laws will determine who gets your things. If you are married, most States’ laws will give all your assets to your wife if you have no children. If you do have children, then your things will get split between your wife and your children in varying proportions, depending on who is your children’s mother. If you are not married and have no children, then your stuff will go to your parents, or your brothers or sisters, or other relations.
So, if you do not like what will happen to your stuff without a will, then you should make one.
Here is a list of people who probably need a will
Married couples with little kids should have wills
Many young married couples with young children, think that they do not need a will because they don’t have any money to give away. However, they need a will so they can appoint the guardian for their children. The guardian is the person that will raise the kids if the parents are no longer around.
Divorced people with minor children should consider having a will
When a divorced person dies, the minor children will almost certainly be placed with the ex-spouse. However, in a will, a person can name the conservator for the estate of their minor children.
The conservator will manage the money you leave for your children for the kids’ benefit. Without a conservator, your assets will be managed by the kids’ guardian, which will usually be the ex.
So, if you want to leave your money, insurance proceeds, etc. to your kids, but do not want your ex to control that money, then you should make a will.
Unmarried couples with minor children also should have wills
These folks should also make a will, so that they can appoint guardians and conservators. Doing so will avoid a custody fight with various relatives, especially if both parents name the same guardian.
Parents (who are not a couple) of minor children born out of wedlock
The other parent will almost certainly become the guardian of the children, because they are the “natural guardian.” However, if the other parent is unable to care for the kids because of imprisonment, rehab, or other such bad situations, then the person nominated in the deceased parents’ will is likely to be appointed by the court.
Even if the surviving parent is not a doper, or other such “bad” person, the person nominated as the conservator in the will can take care of the inheritance. Would you really want a person that you were never married to taking care of the money you leave for your children? Probably not.
Married people who have children (big or little) with someone other than their current spouse
If you don’t want the mother of you children to manage the funds you leave for your kids, you should appoint a conservator of your choice.
If you do not want your current wife or husband to share your estate 50/50 with your kids, then you should probably have a will.
You might want to leave more than half to your spouse if you have been married for a long time. Or you may want to leave less, if you just got home from your honeymoon.
If you have older children, significant assets, and/or get married at an older age, you should also consider a prenuptial agreement. Before you tie the knot.
Parents who have children with more than one other person probably should have a will
If any of the kids are minors, then all the reasons to appoint a conservator apply.
Even if the kids are not minors, you might want to spread your your wealth in some other ratio than 50% to your kids and 50% to your spouse.
If you are not married though, and you want your kids to share you inheritance equally, you can probably do without a will.
Parents of children with special needs should have a will, at the least
Parents with special needs kids need to be especially careful with their estate planning.
If you and your spouse are the parents of a special needs child, then you are probably OK, unless you dies simultaneously. If you are not married to your other child’s parent, then the Court will almost certainly let the other parent take care of the child. If the other parent cannot act as the parent, or if they cannot be located, etc., then the Court will probably appoint as guardian of your child, the person you appointed in your will to take care of your child.
The main reason parents of special needs kids need a will is to appoint a conservator for the estate of the disabled child. The other good reason is to set up a testamentary special needs trust for the benefit of the minor child.
Parents of children that receive social security disability benefits
Children can receive social security disability benefits for a number of reasons. Aside from the financial benefit, they usually also receive other government benefits, such as medicaid coverage, and perhaps a housing allowance and other such assistance.
These disability benefits are usually conditioned upon a beneficiary’s income and assets being below a certain amount.
So, if you have a special needs child with disability benefits, you do not want to leave them any money. A modest inheritance, something over about $2,000.00, will cause the child to lose benefits.
People that want to leave specific things to specific people should have a will
In most probates, the estate of the deceased is just gathered and liquidated, and the money split between the heirs. However, if you want your grandmother’s dining room table to go to your niece, and your father’s rifle to go to your grandson, then you will need to make a specific bequest.
People who want to leave something to friends or to charities should also have a will
If you want to leave your snowblower to your neighbor Herb, because he was borrowing it all the time anyway, then you will need a will.
If you want to leave something to the local humane society, you will need a will.
There you have it. Not everyone needs a will. But if you fall into one of the groups of folks mentioned above, you should consider it.
By Steve Harton
Steve is an estate planning attorney in Rock Springs, Wyoming. If you have a probate matter in Wyoming, please give him a call, at 307-382-5545.