Lesson from Anna Nicole Smith - Make a Will!

Watching live TV coverage of lawyers fighting over the body and estate of Anna Nicole Smith and reading the daily stories in the paper is both entertaining and enlightening. Financial advisors are reporting that, as a result of all this coverage, there is increased interest among the public about making a will.

Making a will, like buying life insurance or making your own funeral arrangements is not something that most people look forward to doing. However, it is important especially if you have children and even more important if you have a blended family with his and her children. As I explained in a previous hub, Dying Intestate, there can be complications when a parent dies without a will and leaves behind minor children. The big problem here is that state law, not the surviving spouse and children, will determine how the estate is to be divided. And, the laws pertaining to estate disposition in the absence of a will vary from state to state.

For most people, the law will seek to make sure the spouse and minor children are taken care of with the assets of the deceased. However, this may involve dividing the property (including the house and cars) between the spouse and children. No problem, except that when the spouse goes to sell the house or car, he or she will have to get permission from the court appointed guardian of the children. In most cases the spouse, as the parent of the children, will also be their legal guardian. However, if the funds from the sale are to be used to purchase a new home or car there could be problems as part of the funds legally belong to the children. Imagine a situation where the state awards the home to the spouse and child and the child, after reaching maturity, wants the money due him or her from the estate – dose the surviving parent sell the house and divide the proceeds? Take out a loan? Worse still, what if, after reaching maturity, a child has a falling out with the parent and sues over the way the parent, as legal guardian, handled his or her funds from the deceased parent's estate? If one parent hadn't died prematurely and without a will, the child would have no claim on the property as it would all belong to the parents. These possible problems can be solved with a will that leaves the entire estate to the surviving spouse thereby giving him or her the freedom to manage the family funds and raise the children without any division of property.

Or, take a situation of a couple who each came into the marriage with children, minor or adult, and both die in an accident, one a few minutes after the other. Without wills, the property of the first to die will be divided among his or her heirs with half or more going to the surviving spouse and then, following the death of the surviving spouse a few minutes later, to the heirs of that spouse which, more than likely, would not include the children of the first spouse to die. If the children are minors, then those of the first spouse to die could come up short financially as they would have to split their parent's half of the assets with the surviving spouse and these assets, along with the surviving spouse's half of the couple's assets, could go to that spouse's natural children.

If you have a living together relationship, like that of Anna Nicole Smith, there is usually no provision for the estate going to partners or children other than those of the deceased. And you don't have to have a multi-million dollar estate to have hurt feelings and lawsuits over who won and who lost in this estate lottery in the event of your death.

Making a will is simple and, if you are not wealthy, don't have a business or have any type of complicated living arrangements, can be done without a lawyer. In fact wills do not have to be drawn up by an attorney in order to be valid. For about $19.95 or less you can purchase a will making kit or go on line and make a will for about the same price. There are also many software packages that will help you to make a will. In addition, there are also many free sources with information about wills on line. However, if you have sizable assets, a business, a special situation (such as a disabled child who will need financial support and care as an adult), want to provide for a charity or any other complex situation it is a good idea to at least pay an attorney to review the will you wrote or, better yet, write it for you.

While you can simply sit down and write a will, it is a good idea to at least use one of the the software or other will making packages in order to keep the will in compliance with the laws of your state of residence. For instance in most states you cannot disinherit a spouse or minor children (for example, if Howard K. Stern had married Anna Nicole Smith and their residence was in New York State, he would automatically receive 1/3 of her estate regardless of what her will stipulated). It is also wise not to include things like bank accounts, real estate and other property held jointly with right of survivorship in a will as these will normally pass automatically to the survivor and including them in a will can delay or complicate the transfer. Also, life insurance policies with named beneficiaries should not be included as these will automatically be paid to the beneficiaries listed. If, on the other hand, you list your estate as the beneficiary (which is usually not a good idea) on your life insurance policy you will then have to state in the will how you want those funds divided.

With a little bit of planning you can make things easier for your heirs in the event of your death and avoid the legal circus that is unfolding in the wake of Anna Nicole's death.