51% of Americans 55 to 64 do not have a will despite the fact that a well written will can ease the process for survivors by settling things quickly, transferring assets promptly and reducing the tax burden. If you die without a will – “intestate” – you have no control over what happens to your estate or your children. The state has control. In most states, without a will in place, half your assets will go to your spouse and the other half to the children. This can get very messy - if there is no spouse or children, if there have been other marriages, if there is friction within the family, or for a myriad of other reasons.
- Putting a will in place will make probate faster and easier. Probate is the court supervised process of distributing and overseeing your property after your death. If your will spells out who gets what assets at the time of your death, you can reduce the time the will spends in probate. This is desirable since probate involves court costs and attorney fees so the longer it takes the more it will cost the estate leaving less for your heirs. Not to mention, that probate can be very stressful for your already stressed and grieving family members.
- With a will, you get to decide how you want your remains to be handled.
Want to be buried in the family plot? Or would you prefer your ashes scattered at sea? David Bowie passed away recently. His will was written 10 years ago, before he became ill, and spelled things out in great detail. He fell in love with Bali on a trip overseas many years ago and directed his executors “to arrange for my remains to be cremated and my ashes scattered in Bali" and they were.
- Having a will in place allows you to decide who gets what and how much and who gets nothing. Without a will, your intended desires may not be carried out. However, you cannot disinherit a spouse. You can disinherit children, however.
Be specific about who gets what. Last year, Robin Williams’ children and widow ended up in a bitter battle because it was not clear that his instructions to give the house to the children included the items of property in the house as well, or just the building structure. The family spent months (and hefty legal fees) fighting over his memorabilia, clothing, jewelry and other personal items.
Today it is also important to think about your digital assets. These can include photos, blogs, movies, video games, social media accounts, PayPal accounts, etc. There is no federal legislation covering this and only 19 states have any laws in place to protect a person’s digital assets and give the person’s family the right to access and manage those accounts when the account owner has died.
Who will take care of your minor children when you die? In New Jersey and some other states, if you still have minor children when you are gone, you can designate your preferred choice of guardian for your children in your will.
- When you write a will, you choose the executor. The executor (executrix, if female) makes sure all your affairs are in order, including paying off bills, canceling your credit cards, notifying the bank and other business establishments, and preparing and filing final income tax returns. Executors play a large role in the administration of your estate, so you’ll want to be sure to appoint someone who is honest, trustworthy, organized and good with paperwork. It does not have to be a family member. It should be someone in good health and/or younger than you. Whoever you choose, be sure to get their approval before naming them in your will.
- DIY or hire an attorney? There are websites that allow you to create your own will, but the rules vary from state to state and it is easy to make an error. A good example of this lies with the late Warren Burger. You'd think a Supreme Court justice would have no problem writing his own will, but he made several errors that cost his heirs plenty in legal fees and more than $450,000 in taxes.
We can help create a plan, draft the document, and prepare formal execution of the will to make sure it is clear and has little chance of being contested and get through probate quickly. We can also review any will you currently have in place. There is no time limit on the validity of a will, but a review every three to four years is recommended. It is important that reviews are also done when your circumstances change such as marriage, divorce, children or following the acquisition of property.
I am happy to discuss your will in detail with you via email or phone. Please don’t hesitate to call me at (973) 509-8500 x213 or write me at LFarber@LFarberLaw.com