Law Blog

ESTATE PLANNING: Advantages of a Will (Part I)

This article is the first in a series focused on estate planning. Let’s start with the basics. Do you need a will? What happens if you die without one? Is having a will something you start thinking about once you have kids? Once you have significant assets? Once you get older? What exactly is the big deal?

Let’s face it. We all have a tendency to put off thinking about our own demise. It usually takes some kind of prompt to get us to take the time – and pay the money – to have a will drafted. That prompt may come in the form of the birth of child or development of health issues. Those are common reasons people start thinking about their last will and testament, but are they the only reasons?

In reality, every adult should have a will – even if the estate does not have significant assets – and these are the reasons why.

Healthcare Directives

Even if you don’t own much more than the clothes on your back, it would still be worthwhile to put together a simple will with instructions about how you would like your healthcare to be carried out in the event you are unable to make your own decisions.

Would you like your life to be artificially sustained even if you in great pain? What about if you are in a vegetative state? Let’s say you are in a coma, and the doctors do not know whether you will ever recover. They can keep you alive, but doing so will likely bankrupt you and your close family members. What would you want to happen?

These are very difficult and very personal choices. Ideally, you should make these decisions for yourself. A simple will with standard healthcare directives will cover broad categories of circumstances, so your loved ones will have some idea of what your wishes are should the situation ever arise. At the very least, you can name the person you want to make those decisions on your behalf.

The truth is it’s not fair to put your loved ones in the position of having to make such decisions without any guidance from you.

Hopefully, the situation never arises. But, the time and money its takes to cover these contingencies are so minimal there probably is no good reason for any of us not to have healthcare directives in place. And, if you are going to do the heathcare directives, why not just include them in a will?

Control over Distribution

Alright, so I suppose if one really does not have much in the way of assets, then distribution is not a big issue. Then again, it’s not like one’s will is going to expire. Hopefully, there will have some assets in the future, so why not put the estate in order now?

After all, making a will early on may very well lead to clearer, more objective decision-making about who gets what.

In any event, most people do have enough in the way of cash, insurance proceeds, real property, vehicles, etc. to warrant the nominal expense of drafting a will.

Do not be under the impression that the judge or your friends and family will make sure the right people get the right things. They won’t have any control over what happens.

Chapter 732 of the Florida Statutes covers intestate succession. (Dying “intestate” means dying without a will.) Those rules are rigid and, perhaps, just a bit arbitrary. There is no room for fondness or necessity or any of the things you personally might want to be considered. By and large, the judge is not allowed to consider anything outside this set of rules set up specifically for people who die without a will. Nothing else matters.

So, even though everyone knows you were madly in love with your fiancee, she gets nothing. Even if your younger sibling really needs the help more than your older sibling, the split will be the same. And, though you were fully intending to divorce your spouse and cannot stand the thought of giving her/him your company . . . well, you get the idea.

Without a formal will, you completely give up control of your estate. All the judge can do is follow the statutes – even if the result is the exact opposite of what you would want.

 There are very many sad stories (and a few humorous ones) about the outcome of intestate succession. Maybe you think “Hey, if I’m dead, I don’t care what happens.” That may be true but, then again, it is not really about you at that point, is it? You are planning today to protect the ones you care about tomorrow.

Costs

While Florida has no estate or inheritance tax – which is a big advantage over some other states – there will still be additional expenses if you die without a will. If nothing else, there will likely be significant additional legal expenses involved in the probate of your estate if you leave nothing behind to guide the court as to your wishes.

Children

Naturally, issues related to guardianship and providing for children from other marriages are very important items addressed in your will. If that situation applies to you, then you probably do not need much convincing. Going forward without a will is gambling with the welfare and happiness of the most loved – and vulnerable – people in your life.

Tax Planning

Most of this article has been aimed at demonstrating that even people who might think they do not need a will probably really do. Much more attention will be given in upcoming articles to key issues and techniques available for those whose estates are large enough to warrant tax and succession planning. Here, it is enough simple to note having a will is the first step towards effective estate planning.

~ Jeff Harrington, Esq.