Estate Planning Basics - Top 3 Reasons You May Need a Will

Estate Planning Basics:  Top 3 Reasons You May Need a Will

   When I meet with a potential new Estate Planning client, one of the first questions I always hear is, "Do I really need a will?"  That question is usually followed by comments such as, "I don't have tons of money," or "If I die, my spouse will just get everything," or "If my spouse and I both die, my parents will raise our kids."

   I also frequently talk to parents who just can't imagine someone else raising their minor children if the unthinkable happens and both parents die.  And while it may be true that your spouse will inherit all of your assets upon your death, or that the person you want to raise your minor children will be appointed guardian, the only way to make absolutely certain that these things happen is to have a will or trust.  

   With that being said, the following are the top 3 reasons you may need a will to protect yourself and your family:

1.  You have minor children, and you want to choose their guardian(s) in the event that both parents pass.

   The only way to be absolutely certain that the person(s) you want to be guardian of your minor children in the event that both parents pass is to have a valid will in place.  Under Michigan law, if both parents pass and a will has not been executed, a judge will decide who becomes the guardian of your children.  Michigan law does not have a provision that appoints the grandparents, or an aunt or uncle, as guardian in the absence of a will.

   In the event that both parents pass without a will, and the entire family agrees on the appointment of a guardian, a judge will usually follow that recommendation.  But is it fair to place your extended family in a position where they have to make that decision?  And what if they don't agree?  Then the only resolution is to go to court and let a judge decide.  

   In summary, in the event of your untimely passing, the only way to guarantee appointment of the guardian you want for your minor children is to have a will.    

2.  You want to decide - instead of allowing a judge to decide - how to distribute your assets upon your death. 

   Just as with the appointment of a guardian for your minor children, the only way to guarantee that your assets are distributed as you desire is to have a will.  If you don't have a will at the time of your death, your assets will be distributed according to the laws of intestacy.  (Intestacy is the legal term used to indicate that the deceased did not have a will).  Under the laws of intestacy, your surviving spouse has the first claim to your assets.  Depending on whether any money is left over after your spouse receives his/her share, your children will have a claim, and then your parents and siblings will have a claim if money is still available.  If you want to make these decisions instead of allowing your assets to be distributed according to a formula, you need to have a will.  

   In summary, you need to have a will if you want to decide who will receive your assets upon your death. Under the laws of intestacy, your surviving descendants will receive your assets upon your death, which leads us to reason #3 you may need a will.

3.  You want to distribute a portion of your assets to someone not in your family.

   As mentioned above in #2, if you don't have a will, your assets will be distributed according to the laws of intestacy.  Under Michigan's intestacy provisions, the only people that will receive your assets upon your death are members of your family (your surviving descendants).  If, at the time of your death, you have no surviving descendants, the state will inherit your assets.  Your boyfriend, girlfriend, or partner, even if sharing your household at the time of your death, is not considered to be a part of your family and will not receive any of your assets if you do not have a will.  If you want someone outside of your family to receive all or a portion of your assets, you must have a will.

   In summary, the best and only way to make sure that your wishes are carried out upon your death is to have a validly executed will.  

   To learn more about this topic, or to schedule an appointment with Attorney Mike Toburen, please go to:  http://www.toburenlaw.com/