What Is A Will? Why Do I Need One?
Do I Need A Will?
It seems to be the first question asked every January. New Year’s resolutions are often made between couples that “this is the year when we get this done”. It is a good question and a good thing to take care of for everyone but the answer is not as simple as “yes” or “no”.
A will is your opportunity to make sure that your assets benefit those whom you care about the most. The will contains instructions as to where and to whom assets are to be distributed at the death of the individual but it will also contain an appointment of the person who is in charge of making these distributions.
Under a will, the designated person in charge is known as the “executor or executrix”. They are given authority to pay bills, settle disputes with creditors, sell or transfer assets and eventually to distribute the remainder as designated by the decedent.
A will is formally filed with the local Probate Court who issues Letters of Authority to the named executor/executrix to accomplish the directions of the decedent. The Court then supervises this administration and eventual distribution. It takes time and it will incur expenses for administration and probably attorney fees to retain someone with expertise to assist the executor/executrix.
If a person were to pass away without a will, this process of distribution is totally controlled by the Court. Every state has a statute (law) that controls the distribution of a decedent’s assets, if there is no will to direct the distribution. Spouse, children and even siblings will inherit under this statute. It may appear to be the same result that would be accomplished with a will but the percentage of distribution is controlled by this statute and may not always be the way the decedent would have wanted.
The administration of an estate in probate court without a will is cumbersome. The person in charge (known as the administrator/administratrix) must ask Court permission to do any action (pay a bill, settle a claim, make a distribution). If there were a will, the person in charge would just take care of everything and report back to the Court when completed.
So it still sounds like you need a will. This is where “estate planning” becomes important. The best answer to the original question is not a simple yes or no. Everyone should have an estate planning expert review their assets and offer suggestions of how to best accomplish the goals of passing along assets. All of our attorneys at Donnellon, Donnellon & Miller have been trained and educated in the best estate planning methods and are available to help out at any time
The will is the basic lynchpin of every estate plan. Every estate planning specialist attorney will explain that there are many ways to make a decedent’s wishes happen that do not involve a will, the court or costly administration. There are Transfer on Death clauses, Joint Ownership clauses, Payable on Death clauses, beneficiary clauses and other forms of ownership that will allow an asset to pass to the decedent’s designated person or persons without any court action. In many cases, if the estate assets are well planned, and ownership tweaked with the right style beneficiary clauses, a will would not be necessary to transfer any of the assets.
But a good estate planner knows that the unexpected could and does happen. An asset could have been forgotten, newly acquired or inherited from a third party after the estate plan was developed. It is always a good recommendation to have a will set up with the decedent’s wishes to cover all contingencies, even if the will is never used and no probate is necessary.
Set Up Your Will Today
For more information about wills, trusts, and other aspects of Estate Planning, contact the Cincinnati law firm of Donnellon, Donnellon & Miller at 513.891.7087 today.