The Will: Don't Be Caught Dead Without One

Article by Linda Hodge

Disclaimer: This article is for informational purposes and is in no way meant as legal advice, nor should it substitute for the advice of an attorney.

Admit it folks, mortality (especially your own) is not the most pleasant topic of discussion for you. For most of you, life couldn’t be sweeter right now. Whether you’re in your prime or approaching your “golden years”, you no doubt have found a sense of security in the fact that medical technology combined with this era of health-consciousness, is keeping you healthier longer. The Center for Disease Control and Prevention recently reported that by the year 2030 the number of older Americans will have more than doubled to 70 million! The United States is truly on the brink of a longevity revolution. Consequently, you probably feel justified in putting off those matters that you perceive as being morbid – such as Will preparation. After all, you are not are planning to die tomorrow. And besides, only the aged and infirmed need to be concerned about making Will preparation, right? Unfortunately, this is not the case. In fact, this could not be farther from the truth.

The fact is that it just makes good sense for any mature adult to have a Will in place. A Will is simply a written legal document that states how you want your property and assets dispersed, to whom they are to be dispersed, and who you want to handle your affairs after your death. A person who dies (the “decedent”) without a will is said to have died "intestate". Some people mistakenly believe that only those who have large estates with significant assets need a Will. But, the truth is that whether you leave a large estate or a few assets and personal items, it would be a wise choice for you to have a Will in place stating your wishes. Here is why:

In most states, if you die without leaving a Will, the state will decide who gets guardianship of your minor children. Also, the state of your residence will appoint someone to act as administrator over your estate. If it happens to be some family member who hadn’t spoken to you in the last 10 years, it wouldn’t make any difference as your wishes were not stated in a Will. And in the event you don’t leave any living relatives, your property will be left to the state!

Here are some sobering facts regarding “intestate” successions: If you die “intestate” in the state of Louisiana, leaving a spouse, but no children, your spouse will get all of your community property (generally, property acquired during your marriage). However, if you are survived by siblings or by your parents, and if you had property that was separate from your community property, then your surviving spouse will not be entitled to your separate property. Your surviving parents or siblings will get all of your separate property. If you die intestate in the state of California, leaving no next of kin, and if your spouse has predeceased you, but is survived by parents or siblings, then your estate will pass to your spouse’s parents or siblings.

Now, perhaps you have given verbal instructions to your loved ones, relating how you want your assets and personal effects distributed when you pass on. And of course, you are fully confident that your wishes will be carried out without a hitch. Well, if you will reflect for a moment, you will surely be able to recall more than one instance where a close-knit and loving family was transformed into virtual enemies over a few acres of land, a piece of jewelry, or some other material item left by a deceased family member who died without leaving a Will. This would surely have been avoided if the decedent had left a Will.

Finally, consider this: One of the last things your family might remember about you is how your estate is settled. If you leave an estate that is extremely difficult to administer because you failed to leave an up-to-date Will, you may be indicating to your family that they were not worth the trouble of planning ahead for their future. So do yourself and your family a favor – go ahead and get your Will prepared. You’ll probably live to be a hundred, but you’ll live with the peace of knowing you have your affairs in order.

Research Sources: Louisiana Revised Statutes; Center for Disease Control and Prevention website; and the California Probate Code.