Avoidance in Will Writing
Do I need a Will? I don’t want to think about this. It’s classic avoidance – it is only human nature to avoid this subject as it reminds us of our own mortality. If you’re in your twenties, you’re more concerned about your weekend plans than thinking about what will happen in the unlikely event of your death. As a thirtysomething, you may be so wrapped up in your kids lives and activities and haven’t “gotten around” to making a will. What about your forties? Embarrassment may keep you from an attorney because you don’t want to admit you don’t have a will yet. You get the idea. There’s an excuse for every generation. Read on to understand the importance of writing your will.
What Happens If I Die Without a Will?
- In Pennsylvania, if one dies without a Will, that individual’s property, which passes subject to the Will, will be distributed according to state “intestacy” laws. These laws give assets to the closest relatives, beginning with the spouse, one’s children, and continuing to increasingly distant relatives. Therefore, if the court exhausts this list and finds no living relatives, by blood or marriage, the state will take the property. That is to say, if an individual dies without having a Will, that individual loses the right to determine “who gets what.”
- If the deceased had minor children, the Will should set forth the individual who will be named Guardian of the minor children, if neither parent is surviving. However, if a Will is not properly executed, the deceased loses the ability to choose the children’s guardian.
- If an individual dies without a Will, and had separated from his or her spouse, without finalizing a divorce, the surviving spouse will receive at least 50% of the estate which passes subject to the Will. (And who wants that to happen?)
- The Will should set forth the name of the Executor of the Estate, which will be the person responsible for administrating the estate. Otherwise, the court will name an Administrator.
- The Will should set forth the name of the Trustee, of any monies being held in Trust. If there is no Will, and assets are being distributed to minors or incapacitated parties, a Trustee will be named by the court (potentially at significant cost to the estate).
I’m Too Young and Poor to Have a Will
Millennials and younger people may have the mindset, “I have nothing to leave to anyone”. Thinking to themselves, “Do I need a Will?” But, please consider the following:
· The possibility of receiving an inheritance. If named a beneficiary of the estate of another, you may now have a valuable asset in need of consideration.
· There is a pet that requires care. If you are the proud owner of a furry friend, you may want to provide for his or her care in your absence.
· Possible avoidance of a lengthy and arduous probate process to take care of the estate. In the absence of a legal document outlining your wishes, the estate, however modest, may wind up in probate court.
· Friends. The court will not recognize friends, including boyfriends/girlfriends as viable beneficiaries. And, you may not want them to be left out. There is no “common law marriage” in Pennsylvania. Without a will, your family may not know that you want your best friend to have the Tiffany vase she always admired, or that you’d like Mike from college to have your baseball cards.
· Protection of online identity. You likely have a social media presence. These platforms reflect your personal brand and style. If there aren’t any specific legal instructions, your family won’t have access to these accounts. Most importantly, there may be sensitive, confidential information in your accounts in need of protection including content and photographs.
Will Writing 101 – The Formalities of Writing Your Will
· You must be writing your Will freely, that is, you are not under pressure from another party or person.
· You should have witnesses to the execution of the Will. Some states require two, or even three witnesses and notarization of a will.
· You must have the capacity to make a Will/ be of sound mind.
· You must be at least 18 years of age. As a Will is a legal document, the signor must not be a minor.
· The Will must show the date it was signed. In some states a requirement exists to initial every page.
· Your Will should not have any staples removed, or it could be considered void.
To Get Started
For more information on things to consider when writing your will, you can visit U.S. News & World Report.
With more than 100 years of combined legal practice experience, the lawyers of Noel & Bonebrake can help. Drafting wills, trusts, complex estate planning, living wills, asset protection, and powers of attorney are among our strengths. Contact the law offices of Noel & Bonebrake today!