DO I NEED A LAST WILL AND TESTAMENT
April 5, 2017
Well hello there! Thanks for stopping by.
The question of whether you need a last will and testament (a will) depends first on if you have any assets that need to be passed on. If you own a house, have a retirement plan, investments, or a car worth more than $14,000.00. If you do, then you probably do need a will (at a minimum).
Most people out there actually need more than just a will, but today I’m going to take some time and discuss what a will is, how we use it, and what it’s limitations are, and what it can do to help you.
PROBATE, IT’S A DRAG AND WE DON’T LIKE IT.
First, we need to talk a little bit about probate, what it is, and why it’s awful.
To start off with, probate takes a long time. You must wait until well after the deceased person has passed away to begin probate initially. That is what will start the process. Then you are required to post a bond (the exact amount depends on how much property there is). If you have an estate of less than $15,000 you can pretty much avoid everything, but otherwise you have a lot of work ahead of you.
I’ll admit that, in Missouri at least, the legislature has tried to make it easier. You can avoid having to post notice on a small estate (notice is when you tell everyone that someone died, that they had assets, and that if they owed you money you need to come and get it). But otherwise, you must wait until the notice time has passed and THEN you can start figuring out how to distribute whatever is left. If there is a creditor out there, they can come in and screw up the works even more. They can file requests for payment, they can look through all the financial documents to try and get paid off, and they can just really ruin what is already a very difficult and stressful time.
If you have to hire an attorney to help protect these assets in probate, then it is going to get even more expensive. A lot costlier than doing it right the first time, to be honest with you.
Okay, that isn’t a full review of probate, but it’s enough to explain why it isn’t good and why we don’t like it.
GREAT, SO A WILL TAKES CARE OF PROBATE… RIGHT?
Unfortunately, no it does not. What a will does is tell the probate court what you wanted to have happen with your stuff. A will actually is kind of a useless document UNTIL you die. Once you die, the will “speaks” for you in the probate court. It doesn’t make probate more private, it doesn’t stop the need for someone to administer your estate, and it doesn’t really speed up the process that much.
ALRIGHT, THEN WHAT DOES A WILL DO THAT HELPS?
A will actually does some very useful things. I think everyone actually needs a will even if they have more complex estate plans (Revocable Trusts, Living Wills, Power’s of Attorney, etc.).
A will allows you to identify who you want to administer your estate, to pick an alternate if they can’t, and then to pick a successor as a personal representative. A will lets you choose how you want things divided rather than letting the State pick (which is what normally happens in probate). A will can waive the costly bond normally required for probate.
A will can also allow for creating a trust to take care of any minor children that might be in your care. This is pretty important, especially for young families. If you have children under the age of 18, they are likely not in a position to manage much of anything. You might need to identify guardians for the children (something you can do in a will). You can also make sure that they don’t have direct control of their inheritance until you think they are old enough to manage it. That is where the trust comes in. Of course, there are other ways to do this too, but this is a nice simple way to make sure that your kids are taken care of and that everything is covered. You can do the same for adult children that are disabled.
If you have a living trust, then you might not think you need a will. I would disagree. What you need, in that case, is what we call a “pour-over will.” This makes sure that any assets that have not been transferred into your trust are dealt with correctly. This makes sure that whatever other assets you have are treated with the same care and respect that went in to planning the living trust. It is kind of a catch-all for whatever else you might have, and for anything that slipped through the cracks.
With all of that said, I don’t typically encourage people to only protect their assets by using only a will. Most of the time (especially in older clients who might own a home, have antiques, or other cherished belongings, as well as investments), I recommend using a trust of some variety. But that is a discussion for a different day.
If there is anything else I can do for you, please don’t hesitate to let me know.
Thanks for reading!
Good luck out there.