Following up on my last post, I get a lot of questions about whether people really need wills. The short answer is, of course, it depends! The purpose of a will is simply to announce (in a legally-binding way) your intentions for what should happen to your property and who should care for your minor children after your death. So if you have no kids, no spouse, and no property, then you probably don’t need a will.
But once you are married, or have kids, or start to own property (like your sweet 3D TV and your new car), you ought to think about creating a will. Why? What happens if you die without a will? Essentially, the State of Idaho has created a “default” will, known as the intestate succession laws, which govern in the event you die without a will. If you are married, your spouse gets the first cut, and takes either everything or 1/2, depending on whether your parents are still alive and whether you have kids. The second portion (whatever is left over after the “spouse test”) gets divided up by your kids – even if your kids are toddlers. So, yes, your spouse and your 3-year-old could end up owning your Mazda 626 together. If you don’t have kids, then the leftover share goes to your parents if they are alive. If your parents are gone, then it goes to the “issue” (a charming legal word for descendants) of your parents – typically your brothers and sisters. If you don’t have any of those, then it could end up going to your grandparents, cousins, aunts and uncles, or nieces and nephews. This is when people start showing up out of the woodwork to claim they have some relationship to you and are entitled to a share. Ultimately, if no valid family members show up to take a claim, ultimately everything could end up in the hands of the State of Idaho. (And of course let’s not forget that the State and feds will want a hefty cut of your estate in the event you go down this road.)
And remember that, as Alanis Morrisette suggested in her song “ironic,” there are lots of weird scenarios that can happen: “he won the lottery, and died the next day.” There are stories of people dying a few days after receiving a large inheritance or finishing a novel that goes on to be a best seller. These stories illustrate a helpful guidline: if you die rich and without a will, problems are bound to enuse. If you have a will, but die poor, you’ll just be out the money for the will you prepared.
The easiest way to avoid all of this, then, is to either make sure you die broke and alone or, better yet, die surrounded by friends, family, and wealth with a valid, well-crafted will in place. In a future post, I’ll talk about trusts and why you might want one, and I might even define the term “per stirpes!”
One final note: if you are in a committed relationship with someone but not married, that person will be left out in the cold in the event you die without a will. There’s nothing to prevent same-sex couples or others who either can’t or choose not to marry to secure some of the same rights for a partner as a married couple has by default.