A last will and testament is a necessary requirement for most estate plans.
You know you need a plan for asset transfer when you die.
You do not want to create a will.
After all, surely there are cheaper ways to do this than engaging the assistance of an estate planning attorney.
According to a recent The News Enterprises article titled “To ensure your wishes are followed, prepare a will,” this is wishful thinking.
There actually are other means for transferring certain assets, but these should supplement rather than supplant your will.
What should you know?
Joint ownership is not a complete solution.
You and your spouse could own property together.
If one spouse dies, the other will become the sole owner.
That is how “joint tenants with rights of survivorship” in Kansas and “tenancy by the entirety” work in Missouri.
Although this solves the issue for the death of the first spouse, you will still want a will to account for the death of the second spouse.
Otherwise, this property is headed straight to the probate court.
Beneficiary designations are useless if not filled out.
Some accounts will pass via beneficiary designations associated directly on the account.
These include assets like life insurance polices, IRAs, 401(k)s, and pay-on-death accounts.
Without beneficiaries named, these accounts will pass to your “estate” by default.
And, when they they pass to your estate, this means (what for it …) your probate estate.
With no will, you have no say over who gets receives them then.
If you have assets you need a will.
Also, you may not have a large quantity of assets now, but you may when you die.
If you are somewhat less than meticulous when it comes to titling your assets to avoid probate while you are living, then you should have a will as a “safety net” to at least make the probate process more efficient for any “orphaned assets” when you are no longer living.
Speaking of “orphans,” if you have minor children, then you need a will to nominate the backup parents of your choosing should they be orphaned before adulthood.
Do you really want a probate judge making that call?
It is good to be prepared.
A power of attorney is not effective when you die.
A power of attorney does not give someone authority to manage your affairs when you die.
In fact, a power of attorney expires with the final breath of the principal.
What does this mean?
You need to create a will to name an executor (also known as a personal representative) over your estate.
With a trust, you do not need a will.
This is a common misconception.
A trust is only as good as the assets funding it.
If you forget to retitle your assets into the trust name (whether directly now or by beneficiary designation later), then the trust will have no power over them.
It is important to include a pour-over-will to cover any property left out of the control of the trust.
As you can see, it is dangerous not to have a will.
Without a will you leave your estate, let alone the fate of any minor children, to the complete mercy of the courts and the laws of your state.
Work with an estate planing attorney to give legal weight to your wishes.
Reference: The News Enterprise (September 22, 2019) “To ensure your wishes are followed, prepare a will.”