The Importance of Creating a Will

Creating a will is an essential first step in a comprehensive estate planning process. It allows you to make your wishes clear, ensuring your assets are distributed according to your intentions and minimizing potential disputes among your loved ones. While drafting a will is a relatively simple and affordable process – often costing only a few hundred dollars – it offers peace of mind and can prevent costly complications later. Without a will, the distribution of your property and assets will be determined by the state's intestacy laws, which may not align with your wishes.

Below are common scenarios of what can happen if someone passes away without a will (referred to as dying intestate), and why having a will can prevent unnecessary stress and confusion for loved ones.

When a married individual with children dies intestate:

• Jointly owned assets such as property or financial accounts automatically pass to the co-owner (often the surviving spouse) and do not go through probate.
• Individually owned assets, however, are distributed based on state intestacy laws. Many states allocate a portion of these assets — typically one-third to one-half — to the surviving spouse, with the remainder divided equally among the children.

If a married person dies without children or grandchildren:

• Some states award the entire estate to the surviving spouse, while others allocate a portion of the estate to the deceased’s parents or siblings. For instance, a state may provide the spouse with the first $100,000 of the estate and divide the remainder between the spouse and the deceased’s other relatives.
• Jointly owned assets and community property automatically go to the surviving spouse.

A will allows you to clarify your wishes, ensuring your spouse receives all or most of your estate or that specific family members receive designated assets.

For unmarried individuals with children, intestacy laws typically distribute the estate:

• Equally among the children.
• If one of the children has already passed away, their share is divided among their children (the deceased’s grandchildren).

While this distribution may seem straightforward, complications can arise if there are disputes among children or stepchildren, or if certain assets are better suited for specific beneficiaries. A will allows for accounting for these nuances and designate guardians for minor children, ensuring their needs are met.

Unmarried individuals without descendants face a different distribution process:

• If parents are still living, they typically inherit the estate.
• If parents are deceased, the estate is divided among siblings. If siblings are also deceased, their share passes to their children (the deceased’s nieces and nephews).
• If no immediate relatives are found, the estate may pass to distant relatives or even escheat to the state.

By drafting a will, you can name beneficiaries who may not be immediate family members but who you want to inherit your assetsets, such as close friends, charities, or other organizations.

Unmarried couples face significant challenges when one partner dies without a will:

• Intestacy laws do not recognize unmarried partners as legal heirs.
• The deceased’s estate is distributed among their relatives, leaving the surviving partner without any legal claim to shared property, sentimental items, or financial support.

This can be particularly devastating for a partner who may have contributed significantly to the household or relied on shared resources. A will is critical to protecting an unmarried partner’s financial future and ensuring they receive specific assets.

For domestic partners, inheritance rights depend on the state:

• Some states grant domestic partners the same inheritance rights as spouses, but only if the partnership is legally registered.
• Other states do not recognize domestic partnerships, which can leave the surviving partner without any legal claim to the deceased’s estate.

A will ensures that your domestic partner is protected, regardless of state laws. Additionally, you can designate how jointly owned property or assets will be handled to avoid complications.

Even if the default intestacy laws in your state seem to align with your wishes, relying on them may create complications:

• Asset Protection: Without a will, your property may go through probate, a lengthy and costly legal process that can delay access to funds or property for your loved ones.
• Guardianship for Minor Children: A will allows you to designate guardians for your children, ensuring they are cared for by someone you trust.
• Avoiding Family Conflicts: Clear instructions in a will can prevent disputes among family members over assets, sentimental items, or other property.
• Honoring Your Wishes: Intestacy laws do not account for special circumstances, such as caring for a disabled family member, supporting a favorite charity, or passing on a family heirloom to a specific individual.

• Consult an Estate Planning Attorney: While online templates are available, working with a professional ensures your will complies with state laws and addresses your unique situation.
• Take Inventory of Your Assets: Include property, financial accounts, investments, insurance policies, and sentimental items.
• Designate Beneficiaries and Guardians: Specify who should inherit your assets and name guardians for minor children.
• Appoint an Executor: Choose someone you trust to manage your estate and carry out your wishes.
• Review and Update Regularly: Life changes — such as marriage, divorce, the birth of a child, or a significant financial event—may require updates to your will.

While a will is a foundational document, comprehensive estate planning may include:

• Trusts: These can help manage and protect assets, reduce estate taxes, and avoid probate.
• Healthcare Directives and Powers of Attorney: These documents ensure your medical and financial decisions are handled according to your wishes if you become incapacitated.
• Beneficiary Designations: Review retirement accounts, life insurance policies, and other accounts to ensure beneficiaries are up to date.
• Charitable Giving: If philanthropy is important to you, consider including charitable organizations in your estate plan.

Taking the time to create a will and plan your estate ensures your loved ones are cared for and your wishes are honored. Beyond providing financial protection, it offers the invaluable peace of mind that comes from knowing you’ve done everything possible to safeguard your legacy.

Partnering with a financial advisor or estate planning attorney can make the process smoother and ensure your plan addresses all aspects of your unique situation. Start today to protect the people and causes that matter most to you.