Providing Legal Services For More Than 125 Years

Do I Need A Will??

On Behalf of | Apr 16, 2009 | Wills, Trusts, Estate Planning and Administration

Even if all of your property is jointly owned with your spouse or children, you shouldn’t overlook the need for having a will. A will allows you to direct “who gets what and when”. In addition to the distribution of your assets, your will designates who will be in charge of your estate, and more importantly, your will is where you name your choice of a guardian for any minor children you may have at your death. Without a will, state law generally makes these decisions for you, by way of the Intestacy Statute (which governs who is to receive your assets) and the Probate process, which is overseen by a judge who chooses the executor (often a local attorney) and the guardian for your minor children.

Generally, jointly owned property will pass outside of the Probate process without the need for a will. This is the most common method of asset ownership for a husband and wife. While this may be an effective estate planning method, it often leads to problems. If one spouse dies through a personal injury caused by a third party, the Probate Court will oversee a subsequent lawsuit for recovery of damages, and state law will determine where the proceeds go. Likewise, if the couple dies together in a common disaster, state law will determine who receives their assets, and the Probate Court will generally determine who will be the guardian for any minor children. Even if the couple does not die together, often the surviving spouse does not draft a will or may be unable to do so through incapacity, resulting in the same issues at his or her death.

Your will need not be complex. The most common wills leave specific items and/or dollar amounts to specific individuals, and the balance to a group of individuals (such as your children). A will also gives you the opportunity to name who will manage your estate. This person is your Executor. He or she is the individual you choose to oversee your estate’s administration. Since your Executor will play a central and critical role in handling your estate, you should carefully consider your selection. You may want to discuss the responsibilities with the person you are naming as Executor, although it is not necessary, and can lead to awkwardness if you later remove him or her. Usually one or more alternate Executors are named, should your first choice predecease you or be unable to serve.

Your will is also where you name a legal guardian to care for your minor children after your death; otherwise, a probate court will generally make this decision for you. Again, you should give serious consideration to your choice, and you may want to discuss it with the person named. With the high rate of divorce, it is becoming more common to name one person as the guardian, rather than both a husband and wife.

Joseph W. Kenny is a director and shareholder of Hamblett & Kerrigan, P.A. and practices in the areas of estate planning and taxation. He is also a Certified Public Accountant with certification as a Personal Financial Specialist. You can reach Attorney Kenny by email at [email protected].
This information is general information and may not reflect the most current legal developments, verdicts or settlements