Why You Need a Will

Everyone should have a will. If you die without a will (or living trust), state intestacy law will determine who inherits your property. These rules are exactly the same for everybody who dies without a will, regardless of his or her circumstances.

In effect, when you die without a will, you let your state legislators write a will for you. Their choices may or may not match your desires. Chances are they won’t. Most intestacy laws leave your entire estate to your surviving spouse and/or your children. If you have no spouse or children, your estate will probably go to your parents or siblings.

Here, for example, are just a few situations that intestacy laws are not designed to handle: you want to leave gifts to someone other than your spouse and children; you have children from a prior marriage; you want to leave your children unequal shares of your estate.

You need a will even if you think you have disposed of all your property through a living trust. Property can pass to your beneficiaries through your living trust only if you have transferred the property into the trust.

  • You may forget or neglect to transfer some property to your trust.
  • You may acquire property shortly before death and not have a chance to transfer it to your trust.
  • Your estate may acquire property after you die. For example, you may have an inheritance that’s tied up in probate until after your death, or you may be a party to a lawsuit that does not settle until after your death.

In these cases, without a will, the property will pass in accordance with your state’s intestacy laws. With a will, it can pass into your living trust or to whomever you name as your residuary beneficia-ries. They will take any property that your will doesn’t otherwise dispose of.

Here are three more reasons why you need a will, even if you have a living trust:

  • Some property is better disposed of by a will than a living trust. For example, motor vehicles are not typically transferred to a living trust because insurance companies hesitate to insure such vehicles.
  • You may need to name a guardian for minor children. In most places, you can name a guardian only in a will.
  • You may want to use a will to dispose of small ticket items if probate won’t be required or will be inexpensive. If you’ve arranged to pass your big ticket items through a trust or other probate avoidance device, you may want to use a will to give away smaller value items, for example, grandpa’s watch, or small cash gifts. These assets may not need to pass through probate or may qualify for simplified low-cost procedures.
Most intestacy laws leave your entire estate to your surviving spouse and/or your children.