Where there is a will, there is a way...
There is a lot written about avoiding probate. Certainly that is proper goal in many situations. The truth is, however, something almost always needs to be probated. You need to have a will to make sure that your wishes are carried out. Here are a few good reasons to have a will:
Where there is a will, there is a way to make sure nothing falls through the cracks.I recently was involved in a case where there was beautifully drafted estate plan and everything was transferred into a living trust or transferred via beneficiary designations. When the decedent passed away, however, he had a tax refund of almost $100,000, causing the need for a probate proceeding. If there had been no will his wishes would not have been carried out.
Where there is a will, there is a way to ensure your plan and not the state's plan is carried out.If you die without a will, the state legislature determines who gets what is in your probate estate, not you. There are laws called intestate laws, that will determine who gets your assets. Even if you like how these laws will work in your case, you should understand that the laws can change. Additionally, your situation could change so that what you think will happen to your stuff, doesn't. I don't know about you, but I want to control who receives my assets when I die.
Where there is a will, there is a way to name a guardian for a minor child.Parents of young children should have a will if for no other reason than to ensure that their minor children are cared for by persons that they would choose should the parents die while the children are minors. A will is an inexpensive way that allows parents to nominate a guardian and set up a simple trust within the will for the children's care, called a testamentary trust.
I have drafted wills where parents also made it clear not only who they wanted, but unequivocably who they didn't want, to assume care for their children if they were to pass before their children were grown.
Where there is a will, there is a way to name who you want to handle your final affairs.If you don't name someone, someone else may do this for you. Certainly we all have relatives that we wouldn't want to handle our final affairs. If you don't decide who will carry out this important task, someone who may not even know anything about you, or your family members, could choose the family member you never would have chosen! Another possibility is that a stranger could be chosen, a stranger who needs to be paid for his/her services, taking a good chunk of what could be passed on to your loved ones.
Where there is a will, there is a way to make sure certain persons don't get anything.I have drafted many a will where the party named someone who they wanted to exclude from receiving any of their estate. There are many good reasons to exclude certain persons in your situation that the state legislature knows nothing about, but has assumed that you want to receive your stuff.
These are but a few good reasons to have a will, even if you set up your estate to bypass probate. You should always discuss the specifics of your case with a knowledgeable attorney who listens and prepares the will to your specification.