Writing a will isn't always the most-pleasant item on your to-do list. Many of us avoid estate planning when possible. In fact, a survey by AARP noted that 2 out of 5 Americans over 45 do not have a will. Still, making a simple will doesn't have to be complicated. You could have a document ready in minutes by using an online simple will form, but do you really need one? Does a will really protect your loved ones?
A simple will does several important things. But before you decide that a simple will is right for you, take the time to learn about what a simple will can and can't do.
1. What Does a Simple Will Do?
Even if you believe you have no assets to pass down, a simple will can answer questions about how your remains will be handled.
Religious or family preferences can be assured when you create a simple will.
Here are a few things a simple will can do:
It Gives You the Power to Make Decisions
A well written will takes the decision-making out of the hands of the government and others. A common misconception I've heard all too often as an estate planning attorney is: “my family will know what to do.”
A death in the family often causes otherwise trusted relatives to become different people. Grief can lead us to act in unexpected ways.
The courts are littered with probate disputes between otherwise loving family members burning up remaining assets in attorney fees.
Perhaps the care of a beloved pet must be assured. A simple will ensures that your wishes are put into effect.
It Leaves Your Possessions With Your Loved Ones
Without a will, your possessions and minor children will be handled through the courts and probate law.
Another factor is the unforeseen matter of your spouse remarrying and disinheriting your children. A simple will can plan for and avoid any unwanted circumstances.
If you and your spouse unfortunately pass away in the same calamity, it is vital to assure any minor children are provided for and that a guardian of your choice is appointed. Possible equity in a home and other assets need to be protected for the use of the minor children.
It Allows You to Name an Executor
A simple will also informs the world of the person you choose to carry out your wishes by naming an executor who will oversee all details. This could be one of your adult children or other relative that is better at handling these kinds of things.
2. What Is the Difference Between a Simple Will and a Living Trust?
Still there's the question of whether or not a simple will is the best fit for you.
One of the biggest differences between a will and a trust is that a will goes into effect upon death, while a living trust is effective immediately upon creation. Here are a few others:
|Must go to probate court||Does not go to probate court|
|Does not require an attorney or notary||Requires a notary and often an attorney|
|Names guardians for children||Cannot name guardians for children|
|Names an executor||Does not require an executor|
|Easier to make but requires witnesses||Does not require witnesses|
|Names beneficiaries||Names beneficiaries|
|Requires transfer of property|
A living trust will keep your assets within the rights of those you choose.
Additionally, it will keep your family and loved ones out of probate court.
3. Will a 'Last Will & Testament' Keep My Loved Ones out of Probate Court?
As a probate attorney, I've had the experience of telling those dealing with loss that "a simple will was just not enough." It's often both saddening and frustrating for everyone involved.
There is a common misconception that having a last will and testament will keep your loved ones out of probate court when you pass. This is not true.
When one dies with and without a will and there are assets to be distributed to family, in most instances the law requires the family to make a filing with the county probate court where the deceased lived at the time of death.
The probate process can be expensive, long and complicated.
The short answer is "no." A last will and testament will not keep your loved ones from attending probate court. Often, the only solution that will keep you out of probate court is a living trust. You can learn more about that by clicking here.
4. How Often Does My Will Need to Be Updated?
Your existing simple will may need updated. The general rule is that your will should be updated whenever you experience major life changes. Here are a few to consider:
You Should Update Your Will If You Move
If you move to a different state, it may be worthwhile to assure that differing state laws do not interfere with your wishes.
You Should Update Your Will If Your Marital Status Changes
If you have children, get married or divorced or experience any other life altering events, it is wise to have these things incorporated in a new will.
5. How Do You Update a Will?
A codicil is an amendment to an existing will which may be able to cover life changing events.
But, with the relative low cost of a new will, it might make sense to avoid codicils with potentially conflicting language, and instead create a new will entirely.
5. What Happens if You Die Without a Will?
If you die without a valid will, you'll become what's called intestate. This means your estate will be settled based on the laws of your state that outline who inherits what.
Every state has difference inestacy laws. In Ohio inestacy, for example, this means that if you die without a will and you have children but no spouse, then your children inherit everything.
Without a will, your loved ones will still go to probate court. Probate is the legal process of transferring the property of a deceased person to the rightful heirs.
7. Where Should You Keep Your Will?
You should keep your will in a safe, accessible place. Often, in a bank safe deposit box that only you can get into, your family might need to seek a court order to gain access.
Another good option is a waterproof and fireproof safe in your house.
You should also keep multiple copies of your will. It's a good idea to have your attorney keep a copy of your will on file.