Why Have a Will?
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There are probably few subjects in law which are surrounded by more myths and misinformation that the subjects of wills and the distribution of estates. Many people believe that not having a will allows the state to take part of the estate (not true), that having a will automatically reduces taxes (also not true), or that having a will means that a lawyer gets to take a big fee out of the estate (also not true). And, of course, there are the stereotypes of little old ladies writing long wills to direct who gets the silver spoons.
The purpose of this article is to provide a brief explanation of what a will can do, and some practical advice on why a will is needed.
What Happens Without a Will?
If you die with assets in your name, and without a will:
The division and distribution of your estate is governed by a statute, called an “intestate” law. (The word “intestate” comes from the combination of the Latin suffix “in,” meaning “not” or “without,” and “testate,” meaning “will,” so “intestate” means someone who dies without a will.) If you are survived by a spouse and children, your estate is usually divided between your spouse and children. If you have only children (or grandchildren), the estate is divided among your children (and grandchildren). If you have neither spouse, children, nor grandchildren, the estate is distributed to your parents, brothers and sisters, grandparents, aunts and uncles, or cousins, depending on who survives you.
The person (or persons) who inherits your estate is usually appointed to serve as the administrator of your estate, to collect your assets and settle your estate.
If you have minor children who inherit from you, a court will appoint a guardian for their estates until they reach the age of eighteen.
If you have minor children and your husband or wife did not survive you, a court will appoint a guardian for their persons.
These laws do not always cause problems, but there are many situations in which you will want to arrange things differently by your will.
A Will Can Protect Your Husband or Wife
Most people assume that, if a husband or wife dies, everything goes to the survivor of them. That is certainly true of jointly owned property, but in Texas, the surviving husband or wife is entitled to only about one half the individually owned assets of a deceased spouse, the rest of the assets passing to the children. Your husband or wife could therefore be very surprised to find, after your death, that half of your property has passed to your children. (If your children are minors, insult can be added to injury, because the court must appoint a guardian for the property passing to the children, and the surviving parent cannot be appointed as the guardian. That means that the children get one half of your property, your husband or wife is still responsible for raising them, but your husband or wife has no control over their half of your property.)
If you are married and want your husband or wife to own everything after your death, it is usually a good idea to have a will that says that and avoid any possible confusion or surprise.
A Will Can Appoint Guardians for Your Children
If you have minor children, you have the right to appoint the guardians who will take care of your children upon the deaths of you and your husband or wife. (Upon the death of only one parent, the surviving parent obviously continues as the natural guardian, so the problem only arises if both parents die in a common accident, or if one parent has already died.)
A Will Can Appoint Trustees for Children
If you have minor children, you also have the right to appoint a guardian of their estates. (A guardian of the estate invests and takes care of the property that a minor inherits, while a guardian of the person takes the place of the parent in caring for the minor.) However, it is usually better to appoint a trustee and put specific directions in the will for applying the child’s inheritance for support and education, and specific directions for the age at which the child may receive the balance of the inheritance outright, free of trust.
If you fail to write a will and your minor children inherit from you, a court will appoint a guardian for them (and the guardian will probably not be someone you would choose), and your children will receive their inheritances at the age of eighteen. As noted above, this situation can be especially upsetting when only one parent dies and property passes to the children by intestacy.
A Will Can Appoint Executors
Although the job of an executor (or administrator) of an estate is usually not as important as many people think (it’s really just a matter of finding the assets, paying the debts, paying the taxes, and distributing whatever is left), there are sometimes disputes about who should be the administrator when there is no will, or there are disputes among the administrators if more than one is appointed. Having a will that names an executor can eliminate these kinds of problems.
If you want to leave any part of your assets to charity, you obviously need a will. If you want to benefit both family members and charity, there may be ways in which you can reduce the taxes for your family through special charitable trust arrangements.
When Does a Will Not Help?
There are some situations in which having a will won’t necessarily change anything.
A will only controls the assets in your name that are part of your estate, and there are many types of assets which are not part of your estate and do not pass under a will. For example, life insurance, annuities, retirement benefits, and individual retirement accounts are usually payable to a named beneficiary, so they are not part of the estate and are not controlled by the will. Also, property owned by a husband and wife as tenants by the entireties, or by one or more persons as joint tenants with rights of survivorship, automatically passes to the surviving owner, regardless of what is said in a will. If all of your assets are jointly owned with your husband or wife, life insurance, and retirement benefits, a will may not be needed if your husband or wife survives you, but may be needed if you both die together.
By a will, you can also make gifts of your body for transplants or research, or provide instructions on where and how you wish to be buried. However, these are poor reasons to have a will. In most cases, no one looks at the will until after the funeral and burial, so it is quite likely that your instructions for the disposition of your body will be found too late to do anything about them.