Thursday, October 24, 2013

What Happens If I Don't Have a Will or Living Trust?

The legal term for dying without a Will is dying intestate. If you do not specify through a valid Will or Living Trust who will receive your property, state law controls and generally distributes your property to your spouse and/or your closest heirs. This may or may not be what you intended.

Furthermore, if you fail to nominate a guardian for your minor children, the state could appoint someone you don't trust as a legal guardian of your minor children. Finally, by failing to appoint someone to carry out your wishes, the state can appoint anyone to be the administrator of your property, and the administrator may have to pay certain fees or post a bond at the expense of your estate, before he or she can begin to distribute your assets.

What Does A Will Do?

A Will is the legal document that allows you to distribute your property to those you choose. A Will allows you to designate beneficiaries to receive specific items from your estate, and other beneficiaries to receive everything else. For example, if you want your house, your car, or your antique thimble collection to go to a certain person or organization, you designate that person or organization as the beneficiary.

Who's going to make sure that your antique thimble collection goes to the proper person? The executor of your Will. The executor's the person you designate to carry out your wishes.

A Will also gives parents of minor children the chance to nominate a guardian. The court makes the final decision when appointing a guardian for your children after your death, but the court will usually accept your nomination. A guardian's legal responsibility is to provide for your child's physical welfare.

Please avoid the following excuses:

"Everybody already knows who's supposed to get what." OR

"I have time to make a Will later." OR

"In my desk drawer there's a list of my possessions, and the persons to whom they should be given (HINT: This is not sufficient!)." OR

"I don't have much. The kids can just come in and divide it among themselves however they decide." OR

"I put name tags on the bottom of every nick-knack and piece of furniture, so they'll know who gets it." OR

"Last year I put all my money in a joint account with my oldest daughter. After I die, she knows to split it three ways with her brothers."

All the common situations above (and many others I'm sure you could add) spell trouble. There is simply no way for anyone to enforce your intended plan if it is not contained in a Will. Families can be forever torn apart, jockeying for position over the distribution of even small amounts of property. Even if you think your family members "know" what to do, you still need a Will just to give them the authority to perform your wishes.

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