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Wills and estate planning

Should I have a will?

Without a will, disbursement of your estate will be administered by a designated state court according to those laws rather than your wishes.’s 2021 Wills and Estate Planning Study found that while the COVID-19 pandemic has increased people’s desire to get a will (35% saw a greater need), the overall percentage of people with a will hasn’t changed – 2 out of 3 still don’t have crucial estate planning documents.1 Discussions about end of life and estate planning may not make for pleasant dinner conversation, but having a living will in place can ease the burden on your loved ones at a difficult time and help you ensure your assets are handled according to your wishes after you pass away. 

What is a living will?

A living will is a legal document that informs doctors and medical caregivers what medical care you want if you are unable to communicate due to an accident, severe illness, dementia or coma. It also guides your family to make decisions about sustaining your quality of life that you would agree with. For example, it can specify if you want pain medication, to die at home or in a hospital, and when to cease heroic efforts to keep you alive. Again, check your state regulations and visit the American Bar Association for template forms and additional resources.

Why should I have a will? 

Creating a will is essential for just about everyone. Fortunately, making a legally binding Last Will and Testament is not nearly as complicated as most people believe it to be.  Moreover, having a Will can help spare your loved ones from a lengthy ordeal with state probate courts, who will then decide how to disperse your assets according to state rules - instead of according to your final wishes. Here are a few equally important reasons to make out a will ASAP.

You need to elect someone to handle your affairs after you pass on

You'll need to assign one honest and trustworthy individual to be the executor of your estate. (Note: It does not have to be a member of your family.) The executor or executrix is responsible for inventorying your assets and property, making sure any lingering debts and taxes (including estate taxes) are paid, properly dispersing your assets, and informing your banks and creditors that you are deceased, as well as guiding your estate through probate court. If you do not choose an executor, the state will appoint one for you, and anyone can petition the court to hold this position.

If you don't have a legally binding will, the state will decide who gets what

An “oral will” (final requests spoken aloud in front of witnesses) and a “holographic will” (a document drawn up by you without the presence of witnesses) may not have much legal bearing in court. A formally prepared Will signed by two, or sometimes three witnesses, can be the best way to ensure that your money and assets are left to the heirs you intend to leave them to. Intestacy laws vary from state by state, but in the event that there is no Will, a person's assets are usually awarded to immediate family first (spouse, children, and parents). If there is no remaining immediate family, your assets are often dispersed between your siblings and their children, or your grandparents, or your uncles and aunts and their children.

A will establishes legal guardianship of your children if they are still minors

Parents of young children should be especially proactive about making a will, because a Will establishes who your children's guardians would be in the event that you (or you and your spouse) die prematurely. If there is no Will in place, that decision is also left to the state. If you have a trust, a business, or a large amount of assets you would like to divide up between your children now or when they reach a certain age, your Will should make your intentions clear.

If you live in a community property state

It's important to mention that some states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), consider property that is owned by a married couple as “community property,” meaning that any assets purchased during the marriage are owned equally by both husband and wife (this also includes any debts). If one of you dies without a Will specifying who gets what, the intestacy laws of your state will decide for you.

You can amend your will at any time

If your marital status changes, or you decide you'd like to update the names of your beneficiaries, your Will can be formally amended at any time. You can simply draft a new Will or attach a Codicil to your existing Will. Do note that some states also require Wills and Codicils to be notarized, so be sure to consult the intestacy laws of your specific state. In either case, having your Will notarized can only enhance its legitimacy.

If you're looking for legal advice regarding your will, an attorney who specializes in estate laws in your state of residence should be able to answer any questions you may have. You can also find more information about wills, preparing for the unexpected, and estate planning in the Protective Learning Center.

1.’s 2021 Wills and Estate Planning Study


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