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What is a Will, and Why Do I Need One?

May 23, 2017

Wills are for everyone, not just the wealthy or elderly.  We don’t make a Will for ourselves; we make a Will for our loved ones.  Although it is never pleasant to think about wills and dying, if you die without a Will you’ll be subjecting your loved ones to possible confusion and anxiety at an already difficult time.

A Will is your written instructions regarding the distribution of your money, real estate and personal belongings. A Will can also determine who will raise your minor children, and who will be responsible for administering your estate (the personal representative). Without a Will, a court decides who will raise your children and who will be responsible for administering your estate.  Your money, real estate and personal belongings will be distributed according to a formula decided by legislatures, not you. This legislative formula is called intestate succession.

Intestate succession laws are one size fits all and cannot take into consideration whether some heirs have special needs or whether there are step-children or step-grandchildren that you would want treated as your own. Every family relationship has different dynamics, but intestate succession laws treat all families the same. These laws have no flexibility to address situations where there are no living blood relatives. What if your spouse and/or children died before you? What if you want part of your property to go to someone else, or a favorite charity? You need a Will to address these concerns.

Many people question whether they need a Will because all of their assets have a named beneficiary, or have a payable on death designation, or are owned in joint tenancy with another individual. Not all assets will fall into these categories, for example, who gets Grandma’s china or Grandpa’s guns? What if the beneficiary, payable on death designee, or joint owner dies first?

Another common question is whether you need a Will if you would distribute your assets in the same manner as intestate succession. In many respects a Will is a family management tool as well as a legal tool. With a Will you get to select the personal representative, instead of all of your children or heirs having to agree on a nominee and waive their own right. This causes delay, additional expense and the possibility that one child or heir will refuse to agree and hold up the process. With a Will you also get to make sure personal property/keepsakes go to the people you promised, forestalling years of strained relationships among siblings because of conflict over what appears to be trivial items to outsiders. The probate courts are full of examples of children and heirs acting out in a way that no one expected.

A Will remains effective until it is changed or revoked. However, you should not prepare a Will, put it away and forget about it. You should periodically review your Will and consider changing it if there is a birth or death in the family, if you marry or divorce, if your family dynamics change, if a named guardian for your children or personal representative is no longer available or appropriate, if the value or type of your property changes significantly, or if you move to another state.

This article was written by Kimberly Literovich.  If you need assistance creating a will, contact Kimberly or any of our other attorneys specializing in this topic at 507-345-1166.

Legal excellence. Personal commitment.

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