Who Needs a Will and Why?

February 15, 2016

For Nora and Bill Massaro, having a will gives them peace of mind.

“To me, it was kind of a relief that I was taking care of my children,” Nora Massaro said.

If you die without a will, there’s no guarantee who will inherit your assets.  Basically, the court decides, distributing your property according to the laws of the state.  It’s called probate, and it can be a costly and slow moving process.

Even more importantly, if you have young children, a will lets you designate specifically whom you want to get custody, so the court can follow your wishes.

“They would look to relatives of the deceased parents, but you might want your sister so and so in Baltimore and not your sister so and so in Brandon, you know, just preferences,” attorney Craig Hall said, who’s been creating wills for clients for 30 years.

If you DON’T have a will, this is generally how Probate plays out:

  •   If you were married with kids, your surviving spouse and children inherit your assets.
  •   If you had minor children, the state will choose their guardians.
  •   If you were single and childless, your state will likely determine which of your relatives will inherit your financial assets and property.

Revocable Trust

This is the second marriage for both Nora and Bill.  They didn’t want any conflict between their kids from previous marriages, so they also created a revocable trust to try and avoid probate altogether.

“It can’t be contested. Period. End of story. It eliminates them going to court and having to fight back and forth. The trust dictates what our wishes are,” Bill Massaro said.

“The three sons get a long great,” Nora added, “We want to keep it that way.”

In the big picture, a revocable trust can be contested, but it is much more difficult. An individual who tries to challenge a trust must file a lawsuit and prove he/she has standing to make the challenge.

More Flexibility

A revocable trust, also known as a living trust, gives you more flexibility and control over how your assets are distributed.  For example, it allows you to avoid giving a minor child a big lump sum of money all at once.  You can distribute allotted payments up to a certain age like 25 or 30, when they would receive the balance.

“That helps to give you peace of mind, because young adults often aren’t ready– responsible enough, to receive a large, lump sum of money,” said Hall. The revocable trust gives you more control to make sure that money won’t be squandered.

The “living” trust also gives you more control over your assets while you’re still alive should you become incapacitated. You designate how your property should be handled, by putting it into the trust.

“You don’t know what you’re going to need. You don’t just transfer it, because the kids are going to get it eventually.  You need to protect yourself,” Hall explained.

Execute the Will Properly

If you don’t use an attorney, several websites, like Legal Zoom, offer programs to create a will yourself, but you do have to be careful.

Be sure to execute the will properly to avoid challenges.  The minimum requirement in Florida is two witnesses.

Even better, create a ‘self-proving’ will by taking witness names under oath and notarizing.

“So that you need not go find a witness 20 years from now and have them go to the courthouse, to prove up the will,” Hall said.

Also, be aware, you can’t make any handwritten changes to the will once it’s been witnesses and signed.  That will make the document null and void in a court of law.

Getting Started

The hardest part is often just getting started.

“Thinking it out, as far as, mine, hers, ours is a complicated situation,” said Bill Massaro, “So we had to really sit down and put it on paper.”

Take stock of everything you own from bank accounts to insurance policies to that cherished fishing pole you got from your dad.

Pick the Right Executor

It’s also important to name a ‘responsible person you trust’ as the executor of your will.

“That’s the person who would be handling the transactions, payment of your debts, satisfaction of your bills, and the distribution of your assets per your will,” said Hall.

It’s a big job, so choose carefully.  This is the person who will oversee the process and make sure your wishes are carried out.

Store it in a Safe Place

Once it’s completed, store your will in a safe place in your home or a safety deposit box at the bank.  And let the executor know where it is and how to get access to it, when the time comes.

So what’s the cost of a will?

  •   If you go to an attorney—expect to pay anywhere from a couple hundred dollars to more than a thousand, depending on the complexity of your assets.
  •  Sample forms online can cost as little as $10 to $20 for a basic will, while complete fill-in-the-blank templates average around $100 to $500, depending on the complexity of your personal circumstances.

Why don’t people have wills? 

According to a survey by Rocket Lawyer:

  •  57% said they “just haven’t gotten around to making one”
  •  22% felt that making a will wasn’t urgent
  •  17% didn’t think they needed a will
  •  14% don’t have a will because they don’t want to think about death