THE JOYS OF HAVING A WILL
Wills get a bad rap.
In the first place, Wills are associated with dying, and nobody wants to think about that. Secondly, Wills are associated with lawyers, and nobody wants to think about them.
But having a Will does have some benefits over the alternative, not having a Will. And by benefits, I don’t mean that some lawyer makes a fee for drafting the Will. I mean that by having a Will you can have peace of mind, because you can assure yourself that your affairs will be handled properly.
With that being said, what are some of the specific benefits of having a Will? Having a Will means that you can direct the manner in which your assets pass at your death. If you die without a Will, the State directs how your assets pass, through the State’s intestate succession statute. The manner in which the State has chosen for your assets to pass may or may not be the manner that you would choose. So, having a Will means that the people you want to give your property to will in fact receive your property.
A Will allows you to nominate a guardian for your minor or disabled children. For example, assume that you were to die and that at time of your death, your children were minors. Who would care for your children? Who would make parental decisions for them? If you haven’t taken the time to draft a Will and nominate a person to serve as the guardian of your children, your family will be left to wonder who is to serve as the surrogate parent of your young children.
A family fight could ensue. Perhaps your sister would think she should be the guardian, but your mother would think she should. Now the family ends up in court with a judge deciding who should serve as guardian.
A Will allows you to waive the “probate bond.” The probate bond is similar to a policy of insurance. The person you have chosen to serve as the executor of your estate will gather your assets together, pay your creditors, and make distributions of your estate to your beneficiaries. After your executor has probated your Will, the Surrogate gives the executor what are called “Executor Short Certificates.”
Short certificates are what permit the executor to gain access to your money. In other words, the Surrogate is giving the executor the key to safe.
Well, the Surrogate doesn’t know the executor from a hole in the wall. And giving someone you don’t know access to a lot of money isn’t a wise thing without some insurance that the person will faithfully perform their duties (gather the assets together; pay the bills; and distribute the assets to the beneficiaries). So, to ensure that the executor will perform his duties, the Surrogate will require that the executor purchase a probate bond.
If the estate is worth $200,000, the executor will have to purchase a bond for $200,000. If the executor were to run off with the money from the estate, the beneficiaries would be able to get the value of their inheritance from the bonding company, and the bonding company would have a cause of action against the executor for absconding with the estate’s assets.
The bond, however, cost the estate money. The more valuable the estate, the more the bond will cost the estate. So, if you chose an executor wisely (for example, chose somebody who won’t steal from your estate), then you can waive the probate bond requirement in your Will. By just waiving the probate bond, you have saved your estate several hundred dollars, so the Will just paid for itself.
A Will allows you to choose an executor. I think you can see why that’s important. The executor should be someone who is trustworthy, first and foremost, and good with finance. But a professional could always be hired to help the executor carry-out his duties, so financial ability is not as important.
A Will allows you to make specific bequests of property. If you die without a will, in which case you are said to have died intestate, the intestate succession statute divides your estate up into percentage, for example, 50% to the spouse – 50% to the children. But many people want some specific item to go to a family member or friend who would really appreciate it.
Maybe the person had a prize baseball card collection that they wanted a nephew to receive. Having a Will would allow the person to give the nephew the collection. Without a Will, the collection would be sold and proceeds divided equally between the spouse and children.
Finally, a Will allows a person to make distribution of assets to minor children. Minor children should not be left money or other assets. Through a Will, a trust can be created to hold the money for the children until they reach the appropriate age.