This is the second in a series of articles written and provided, courtesy of Savvy Seattle Women Board member, Sharon E. Best.
Do you need a Will?
Maybe. Maybe not. Some folks would say that if you don’t have a Will, the State gets all of your assets. This is NOT true. If you don’t have a Will, the State decides who gets your assets and the State imposed system is often very close to what you would want. See the end of the article to see who your heirs are under the State imposed system for people without valid Wills.
If you don’t want your assets to be given the way the State specifies, you ABSOLUTELY DO need a Will. For example, if you are a single person with no children who owns real property together with a partner, it is likely your parents will inherit your half of your home in the event of your death. This can cause great disruption to your partner. There are many other tragic unintended consequences caused by no prior planning; however, the State system is the best overall method of planning in the absence of your individual planning.
Even if you want your assets to be given to the people specified by the State, a valid Will always makes things easier in probate. Probate is the legal process for insuring all creditors are paid and assets are properly distributed. For example, it can specify who you want to be responsible for paying your creditors and distributing your assets (the Executor and Alternate Executor). This can prevent a great deal of frustration since a person who is not named in the Will has to meet court imposed requirements that often disqualify a willing able volunteer from being appointed as the Executor. A well-drafted Will includes provisions that make probate faster, easier and less expensive, such as eliminating the need for an Executor to post a bond insuring he/she will not steal assets of the estate, and eliminating the need to get court approval for the sale of specific assets. A Will can specify who you would want to inherit a chosen beneficiary’s share if that beneficiary dies before you do; it can state who should be the trustee of a child’s trust and at what age a child should receive assets placed in trust. A well-drafted Will might also save your estate from the payment of estate taxes if you have over $5,000,000 in assets (including life insurance).
A Will does not eliminate the need for probate, it directs how your assets will be distributed during the probate. There are some specific requirements for a valid Will. You must be competent, you must sign the Will in the presence of two witnesses and those witnesses must sign a sworn affidavit that they were present, believed you were competent and saw you sign your will. The sworn affidavit is designed to replace the need for the witnesses to testify in person after you die and your Will is admitted.
So…I recommend having a Will. Along with the Will, everyone should have Powers of Attorney that will prevent the need for expensive guardianship procedures in the event you cannot handle your own affairs in the future, and, if desired, a Directive to Physicians concerning when “the plug should be pulled.”
The following is the Washington State system for distribution of estates without Wills.
- If you are married, your surviving spouse will inherit your community property (property acquired after marriage unless by gift or inheritance).
- If you are married and have children, your surviving spouse will inherit your community property and one half of your separate property (property you owned prior to marriage and property you acquired by gift or inheritance and kept separate).
- If you are married and do not have children, but you do have surviving parents or siblings, your surviving spouse will inherit your community property and three fourths of your separate property.
- If you are not married and you do have children, your children will inherit all of your net estate, dividing it equally between them.
- If you are not married and you do not have children, your surviving parents or parent will inherit all of your estate.
- If you are not married and you don’t have children or surviving parents, your brothers and sisters will inherit all of your net estate. If any of your brothers and sisters die before you do, then their children will inherit their share of your estate and split that share equally.
The State distribution scheme goes further in the event one dies without a spouse, children, surviving parents, or siblings. It actually goes down to fairly remote second cousins making it possible to inherit from a rich aunt somewhere that you have never met!
Copyright 2012 Sharon E. Best