Do You REALLY Need a Will?

By: Rick D. Massey, J.D.
Copyright © 2010

I am often asked whether or not one really needs a will at all. The assumption is that because Missouri’s intestate statutes govern what happens if you die without a will, and because the division of property is handled pretty close to the way you probably would have wanted it anyway, why bother? Unfortunately, many people who assume they don’t need a will may be inadvertently making things much more difficult than necessary for their loved ones – or worse, leaving them out entirely.

One of three things will happen when you die in the State of Missouri: some of your property will go into probate (see below); all of your property will go into probate; or your property will completely avoid probate.

Probate is the legal process that governs what happens to your property, minor children, and your remaining debts and obligations that were not otherwise dealt with before your death. The purpose of a will is not to avoid probate, but to retain better control over how your estate is administered through the probate process.

Based on all of that, the real question is not so much whether or not you need a will. The question is whether or not you need to do some estate or life planning that may include a will and other tools to better control your destiny, that of your children, and the final disposition of your most important things.

It is true that not everyone needs a will. But almost everyone can benefit from some basic estate planning. If you are still very young, don’t have a large estate, don’t have children, and don’t care if what you do have is tied up in probate for a while after your death, you probably don’t need all of the bells and whistles of a complex, attorney drafted estate plan. Even so, you do need to know the pros and cons of the basic options that are available to avoid probate (such as living trusts, beneficiary deeds, and transfer on death designations). Therefore, it is still wise to consult an attorney to discuss your intentions just to make sure you are not overlooking something important. For example, TOD (transfer on death) designations on items such as motor vehicles, and carefully choosing beneficiaries on insurance applications usually work just fine for those situations. But when someone unexpectedly dies before you, these can lead to unintended results.

You also need to prepare an Advance Healthcare Directive (also known as a Living Will) to determine what happens to you if you are not able to speak for yourself. You can do most of these things without spending a lot on legal fees. You can get the forms for free from the Missouri Bar Association’s website. And you can view a free tutorial that walks you through the questions on the form at my website. If you decide to delay all other estate planning, you should at least do this. It doesn’t cost anything. And it can save your family a lot of stress and unnecessary anguish if something happens to you. While you can obtain and prepare this document for free, you should strongly consider combining it with a Durable Power of Attorney. That way, you can delegate financial control to your agent to make decisions involving additional expense. You can also download a Durable Power of Attorney form at the same website. Of course you should never execute either of these documents for anyone that you do not absolutely trust with your life.

If you have a total estate (including proceeds from life insurance) totaling $500,000 or more, you need professional estate planning. If you have minor children and want to choose who will take care of them if something happens to you, and you want to provide for them after you are gone, you need professional estate planning.

If you do not belong to a “traditional” household, you should think long and hard about getting professional help with your estate planning. If you have a life partner to whom you are not married, you need formal estate planning. If you are a gay or lesbian couple you need special planning with an attorney that understands the legal options that are available to you to help compensate for the unfair and discriminatory laws that otherwise deny you many of the rights and privileges everyone else takes for granted. Your estate plan should be more of a Life Plan because you face additional challenges (such as maintaining the right to see your partner in the hospital, or to handle burial details) as well as many personal and property rights issues that no else has to worry about.

You can, of course, download forms for all of these documents from various places on the internet.  Some are better than others.  Some are actually pretty good.  But they are all missing one very important thing: the advice and direction of an attorney that knows and cares about the end result.  Everyone is unique.  Every situation is different.  Out of the box forms can never replace the careful editing and crafting of a professional that understands and cares about your needs and your circumstances.