Do I need a will? Do I need to update my will?

Blaise E. Picchi

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Wills and Living Wills Lawyer

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Posted almost 5 years ago. 7 helpful votes

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Do I need a will? Do I need to update my will?

People often asks me if they need a will, or if their parents need a will. What happens if I die without a will? Will the state take all my property? What happens if I made a will twenty years ago and die without updating it? Is it still good? It is never a bad idea to have a will, even if you have little or nothing to distribute to your heirs when you die. Who knows, maybe you will win the lottery just before you die. But if you die without a will, the state most emphatically does not take your property unless you have no heirs anywhere.. There are probate laws enacted by the legislatures of the states that provide for descent and distribution of the property of a decedent (dead person) who dies "intestate", i.e., without a will. What those laws provide for is a distribution of the decedent's property in the manner most normal people would distribute their property if they had a will.

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Example

For example, if a widow dies leaving property, money, things of value, and she has 2 living children and 1 who has died before her, and the one who died had three children. The law would say that the estate is to be divided into three equal shares, one share for each of the two living children and one share to be divided three ways for the three grandchildren. If a man dies leaving a wife and two children, then in my state, the law provides that the wife gets the house for as long as she lives, then it goes to the kids, and she gets thirty per cent of the rest of the estate, with the balance being distributed to the kids. If someone dies who is married but without children, then everything goes to the living spouse.

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What happens if someone dies and they have neither spouse nor children?

What happens if someone dies and they have neither spouse nor children? Well, then descent actually ascends, it goes upward to the living parents of the decedent. But what if the parents are dead? -- then it goes laterally, to the brothers and sisters of the decedent. And what happens if the decedent has a million dollar estate, no spouse, no children, and no living parents or brothers and sisters? Well, that's where the proverbial "rich uncle" comes in: it goes to his nieces and nephews.

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What if no one knows who the heirs are?

Well, of course, you can go on and on this way. But sometimes it happens that someone with money dies and no one knows who his or her heirs are or if there are any. This is where the business of heir hunters come in. There are people who will research the genealogy of such a person, and if they find an heir they will contact them and, for a percentage of the estate, set them on the course of claiming the estate. If a person dies without discernable heirs leaving, say real property, the probate court will cause the property to be sold. The proceeds of the sale together with any other money in the estate will be turned over to the state. But even then, should there be hidden heirs somewhere, they have ten years to claim the estate upon proof of their right.

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If you want your property distributed a certain way, you need a will.

People who want their property distributed in a certain way need to have a will. Say a husband and wife who have children. Usually the spouses want everything to go to the other spouse upon their death. Then, whatever is left, to be distributed to the children upon the death of the surviving spouse. You need a will to do that. We call them joint and mutual wills. You cannot make a joint will with two people making the same will. Each spouse has to have a separate will but they can both say the same thing. If I predecease my wife, then everything I have goes to her. If she predeceases me, then everything I have goes to the kids. She writes the same thing about me in her will.

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Special circumstances.

There are a lot of other special circumstances in creating wills. Sometimes people want to put what they have in a testamentary trust, that is a trust created by the will upon the death of the decedent. They might want this trust to provide for an unfortunate child or spouse who cannot take care of themselves or for one reason or another cannot be trusted with a lump sum inheritance. It may be just a trust for children who are too young to receive an inheritance and the trust is only to last until they reach a certain age.

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Wills prevent disputes.

Also people write wills in order to distribute personal property in a certain way. Maybe grandpa wants his oldest grandson to inherit his great grandfathers gold watch. Maybe mom wants one daughter to get the family Lemoge china because she knows she is the only kid who would appreciate it. This is often done by people to prevent squabbling among the kids as to who gets what. This kind of distribution can actually be done outside the will if the will mentions that there may be a "separate writing" distributing personal property to the kids. Then, the testator (the person making the will) can write all these distributions of silverware, paintings, guns, tools, or jewelry down on a piece of paper, typically kept with the will.

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Amending a will.

Maybe mom has second thoughts about giving grandma's brooch to daughter Julie and thinks she ought to give it to sister Debbie. All she needs to do is take the "separate writing" out and amend it. She doesn't need to go back to the lawyer. The only legal requirement of this separate writing is that it can only distribute "tangible personal property" -- not money, stocks, bonds, bank accounts, nor real property, and each page of the writing has to be signed and dated by the testator. Any changes should be initialed and dated by the testator if not re-written entirely.

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Can a will become stale?

Can a will become stale? Too old? Not from a legal point of view but it could from a practical point of view. What if you aren't married to that spouse anymore and he/she is in your old will. What if you bequeathed a gift to your Aunt Lucinda and she has since died and you don't care to reward your rotten cousins with the bequest which they would get as a result? What if you bequeathed a specific property to cousin Bubba but you have since sold that property? You may want to update your will. But a good writer of wills will not be too specific as to bequests of property so that the will can stay current for as long as possible. For example, you would never want to bequeath your new Ford to someone unless you are already at death's door. By the time you die you probably will have owned two or three cars since that new Ford.

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Can you write your own will?

Can you write your own will, say on the computer, printed it out, sign it and put it in your important papers documents? Yes, and no. Wills have to be executed in a particular way to be legal. You can't just write something down and sign it. It has to be witnesses in a precise way. It ought to be self-proving, which requires a notary. To do it yourself you need witnesses and a notary. Then there is the possibility that you attempt to do something in your will that the law does not allow, like giving something to an heir and then prohibiting him from ever selling or getting rid of it. You either give it to him outright or you have to use some complicated legal device for you to keep a string on it after you are dead.

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What your lawyer needs to know when creating your will.

You don't need to bring all your financial records, income tax returns, deeds, mortgages, and 401(k) and pension statements with you when you go to an attorney to make a will. S/he doesn't need specific detailed information about your property. He does need to know, more or less, how much your estate is worth and what's in it. But you can tell him these things without having to prove it to him. He will take your word for it. The amount of your estate will determine whether you need any kind to estate tax planning.

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Federal estate taxes.

These days only estates worth over a million dollars will have to pay a federal estate tax. Some states have there own estate taxes separate from the federal tax. So, when you go see your attorney, have in mind what you want to do with your property after you die. Listen to the attorney because s/he may have some useful suggestions on how to take certain property out of the estate and may quiz you on various matters you may not have thought of. But don't come into the lawyer's office with your mind set on a certain way of doing things. You don't go to the doctor and tell him how to treat you and what drugs to prescribe. You tell him your symptoms and listen to his diagnosis and advice.

Additional Resources

Blaise Picchi, P.A. Attorney at Law

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