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Do I Need a Will?

Updated on October 28, 2012
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Do I Need a Will?

As any good legal answer begins: “it depends.” It really depends on what you need it for? After all, when you die, you have no need for money. Jokes aside, there are many great reasons to have a will or trust set up for those who survive you, but I’m not sold on the idea that absolutely everyone needs a will. This article will outline when I think you should consider getting a will done, or revisiting a prior will. If you don’t have a will, your estate will be disposed of based on the intestacy laws of your state. In North Carolina, the intestacy laws are described in Chapter 29 of the North Carolina General Statutes.

Birth of a Child

When you give birth to a child, you’re going to want to make sure a lot of things are in legal order. You’ll want your birth certificate filed, obtain a social security number, set up a standby guardianship, and make your will. The most important part of your will is the part that establishes who will care for your child when you pass. Although this passage isn’t binding on the court that handles your probate, it is extremely persuasive. The courts assume that you had the best interest in mind for your child when you made the will, and therefore, picked someone who will take the best care of your child. Unless the court finds something terribly wrong with the person selected, and someone contested your will for custody of your child, the court will do what you ask. Without a will, the court has to make a determination of who will take the best care of your child, and who knows who they’ll pick. That judge certainly doesn’t know who you would pick unless you tell him.

Marriage

If you get married, you probably want a new will to include your spouse in your will. Here in North Carolina, if you die without a will, your spouse will take a fraction of your estate, depending on how many children you have and if your parents are still alive. With a will or trust, you can have far more control over who receives your assets and ensure that your spouse inherits the amount you want him or her to inherit.

Divorce

Some states, including North Carolina, automatically disinherit a spouse if there was a divorce, unless that spouse was named specifically, not just “my spouse.” I think it would be awful to have your ex to receive a large, if not entire, share of your estate because your prior will stated that was your wishes. Now, if you never made a will, your ex spouse cannot receive anything under your estate unless you owed him or her money otherwise.

Death of a Beneficiary

If someone you wanted to receive a portion of your estate passed away before you, it is a good idea to go back and review what will happen now. Most all wills include a residual clause, so any amount will be disposed of through there. If you don’t have a residual clause, or your residual beneficiaries have all predeceased you, that portion will pass through the intestacy laws of your state. That means, your spouse, children or parents are likely to receive your remainder.

Death of an Executor

The executor is in charge of ensuring your estate is administered the way your will describes. Without an executor, the court will have to appoint someone to do it. When this happens, usually one family member steps up to help. If your family is anything like most families I’ve worked with, there’s always a really helpful relative who cannot handle finances in any way, shape or form. It would be awful to have this person in charge of your estate, ensuring each person receives the share they were supposed to receive. Most wills contain an executor and a backup. The wills I make have at least three, but if someone wants to, I’m not opposed to listing many many more to prevent this sort of situation.

Ownership of a Business

As soon as you own your own business or you’re a partner/member in a company, you should create a will that outlines how to sell, manage or transfer your business ownership interest. Take my law firm, for example. I have to have another attorney contact all of my clients to let them know I will no longer be representing them, get all property to its rightful owner, and contact the various licensing organizations to cancel my memberships. It would be awful if I passed away while my clients had open cases or documents in the works while there was no backup plan. In most other businesses, you’ll have clientele, contracts, suppliers, and many other people who depend on you. You wouldn’t want to leave them without any idea what happened.

Purchase or Sale of Any Major Assets

Specific bequests are a large part of most wills. A lot of people will leave the house, car, boat or other expensive items to one person, but when you sell your car and get a truck instead, does your will reflect that? It’s not something most people think of when they go out and purchase a new boat, but if you want to ensure it is left to your nephew who fixes boats, you better leave that in your will.

Conclusion

For better or for worse, we generally don’t know when we are going to die. For that reason, if you want your will to reflect something other than how your state’s intestacy laws operate, you should consider making a will. If you’re wealthy, I’d recommend seeking the services of an attorney that specializes in estates and trusts. If you’re on the realm of “do-it-yourself,” you can try, but make sure you follow all of the formalities. Some states have strict formalities that if not followed will make the will invalid. Now, if you don’t have many assets at all, but you want your will to do something special, you should seek out legal aid or some other nonprofit legal organization that caters to low income individuals. While in law school, I participated in two different organizations that created wills for free for those who couldn’t afford legal services normally. My law firm also does simple wills free for those who are below the poverty line and live in the Triangle area of North Carolina at various events throughout the year.

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      Jimbo 2 years ago

      Yours is a clever way of thniikng about it.

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