Why you should have a will
Many clients have asked me: Should I have a will? The answer: Yes!
If you have a will, you can choose who will inherit your property when you die.
If you die without a will, you are said to have died intestate. If you die intestate, and you are a resident of Oklahoma, then, there is a state law (available here) that decides who will inherit your property. This law, called the “intestacy law”, says that your property will be distributed in certain amounts to certain relatives.
But, here’s a little secret about the Oklahoma intestacy law: Lawyers have taken surveys of their clients, and asked clients how they wanted their property to be distributed after they die. The majority of these lawyers’ clients, who took the survey, did not want their property to be distributed the way the Oklahoma intestacy law required! This means that, if you die in Oklahoma, and you do not have a will, it is more than likely that your property will be distributed in a way that you do not want.
In this post, I’ll list a number of reasons why people don’t make wills. I’ll also tell what’s wrong with the reasons for not making a will, and why you should have a will, despite what your objections may be.
Reason # 1: You think you don’t need a will, because you have little or no property.
This is false thinking, for the following reasons:
1. You may own (or be entitled to own) property that you do not know about. A surprisingly large number of people own property that they do not know about. In fact, I would say, that, after having practiced estate and property law for a number of years, I think there is no one in the United States, who can say, with certainty, that they are aware of all the property they own.
You may have had a relative, who died intestate, and you are entitled to inherit from them. Or, someone may have placed property in your name, and didn’t tell you. You may be richer than you think, and you need to direct where your property will go.
2. Even if you don’t have a lot of property now, you may own a lot of property in the future.
You could suddenly come across a great deal of wealth, and you would need to determine how this wealth will be distributed.
Also, many people procrastinate on their wills. If you procrastinate forever, you could earn a large amount of money, and never make a will.
3. Even if you die owning little or no property, your estate could be entitled to property, and you would need to control who your heirs are.
If, for example, you die in an accident, your estate could be entitled to sue for wrongful death. Wrongful death lawsuits can win a lot of money, and, if you have a will, you could control which heirs would receive this money. If you don’t have a will, this money could end up in the hands of heirs who you would prefer not receive this money.
Also, if someone owes you money at the time of your death, your heirs could have a right to collect this money.
It’s also possible that one of your relatives died before you, and you are entitled to inherit from this relative (either by will or intestate succession), but, your relative’s estate was never probated before you die. Your relative’s estate could be probated after you die, and, your estate would be the heir. If you have a will, the persons named in your will would then inherit the share due your estate.
4. Even if you have little property at the time of your death, and your estate is not entitled to any property, family members could end up fighting over even a small amount of property if you do not have a will. For example, in Oklahoma, if you are a married man, and you die without a will, your wife will have a partial claim to your property. Your children will also have a partial claim to this property – and if you have no children, then your grandchildren, siblings, or parents will have a partial claim to this property.
This means that, if you are a married man, and you die without a will, your wife will have a partial claim to your household items, but, she won’t have complete control over your household items. Other family members will also have the right to control these household items. If any of your family members have a strained relationship, not having a will could make things very unpleasant.
5. Even if you have little or no property, and your estate is not entitled to property at the time of your death, a will would still enable you to choose the guardian of your minor children, or disabled adult children.
If you have minor children when you die, a guardian will need to be appointed for them. A relative (or “any other person deemed by the court to be suitable”) can petition a judge and ask to be appointed guardian. If you don’t name a guardian in your will, then, it is possible that a person who you don’t want to be your child’s guardian, will be your child’s guardian.
For many of my clients, choosing a guardian for their child, in the event of death, is one of the most difficult decisions to make. A number of my clients have told me to do whatever I can to ensure that a certain irresponsible relative does not become guardian of their children.
Also, if you have an adult child, who is unable to care for him/herself, then, a relative (or “any other person deemed by the court to be suitable”) can petition a judge to be appointed guardian. (For further information on guardianships for disabled adult children, see my post on “Caring for a disabled adult child”)
If you have a child with special needs, you do not want this child to be in the care of an irresponsible person. You definitely need a will, and a good estate plan, in such circumstances.
Reason # 2: You think that it will cost too much to make a will.
It may cost a few hundred dollars to pay a qualified lawyer to write a will for you. However (because of the potential risks of not having a will, outlined above) the benefits of having a will far outweigh the costs.
Also, if you have only a small amount of property, your will may be simpler, and will cost less.
There are also charitable organizations, that provide free or low-cost wills to certain qualified individuals. One of these is the Wills for Heroes program, which provides free wills for emergency first responders in Oklahoma. To find out if there are other charitable programs, which will be able to provide you a free will, contact the Oklahoma Bar Association.
Reason # 3: You think that making a will is too complicated and time-consuming.
Writing a will is complicated – it’s fraught with legal technicalities. However, if you have a good attorney drafting the will, your attorney will be able to handle all the complexities for you, and can make the process simpler. Writing a will is time-consuming for an attorney. However, it may not be time-consuming for you. The best estate planning attorneys are the lawyers who do as much of the work as possible, and require you to only do a small amount of the work.
Reason # 4: You don’t want to reveal embarrassing private facts.
It is true that, if you hire a lawyer to draft a will, you may have to reveal information such as children born out of wedlock, the value of property, and family problems. However, your lawyer will be bound by the law of confidentiality, which says that a lawyer can be subject to discipline if he reveals confidential information.
It is also true, that, after you die, and your will is admitted to probate, the will will be filed in court, and subject to public inspection. One way to avoid this type of public disclosure is to create a trust. Trusts, unlike wills, are not filed in court. So, trusts can be confidential and unavailable for public inspection. You can also prevent family members from seeing (or even knowing about) a trust. For more information on trusts, click on my earlier post: Should you avoid probate? (Even if you have a trust, you may also need a will. However, you can create a trust, and then write a will devising property to the trust – this is called a pour-over will. If you write a pour-over will, the trust can still be kept confidential, out of the court, and away from the public.)
So, you should have a will.
The bottom line, is: Yes, it’s a good idea to have a will, no matter what your property or situation in life. You should have a lawyer assist you in drafting a will – don’t try to draft one yourself. (To see why you should not draft a will yourself, click on my post “Should you represent yourself?” and scroll to “Drafting a will” at the bottom.)