The Will to Make a Will – Sept 2014
Terry Jessop & Bitner Newsletter
Issue 13, September 2014
According to some polls from the last few years roughly half of all Americans have no will. A person’s property may include jointly held property, payable on death accounts and retirement accounts, which are not passed on through a will. But most people have a lot of property that is not included in these types of accounts. If you leave a valid will, your property will be divided as you say. Without a will, your property will be divided as the state says. Therefore, every estate plan from the simple to the complex should include a will.
A will is your last testament, a written declaration of your desires regarding your property and designation of authority. In your will, you should specify who gets what and, just as important, who is in charge of making sure who gets what. The person in charge of ensuring your will is followed is called your estate’s personal representative. The personal representative you designate will have authority to act on behalf of your estate and to make sure your last wishes, as stated in your will, are carried out. The personal representative’s first duty is to validate the will by filing an application with the court for probate of the will and appointment of the personal representative.
The probate application must be filed with the court within three years of your death or it cannot be probated and deemed valid. Thus, when choosing a personal representative, pick someone you know will get things done in time. If the will is not probated within three years, your estate will be administered under the intestacy laws as described below.
Intestate in the State
If you have no will or your will is not probated in time, your estate will be administered by the state intestacy laws. Essentially the intestacy laws use common sense to establish who will be your personal representative and how to divide your property. Without a probated will your entire estate will go to your surviving spouse if: (1) you have no descendants; or (2) all your descendants are also descendants of your surviving spouse. If, for example, you have a business that you want to leave to a child who is also the child of your spouse, you better at least create a simple will that states this. Otherwise, the business will go to your surviving spouse.
If you have any descendants who are not descendants of your surviving spouse then your surviving spouse will receive the first $75,000 of your property, plus one-half of the balance of your estate. Then any remaining part of your estate is divided according to a complicated intestacy formula where certain portions are given to your descendants and, if none, to your parents and on and on until someone related to you ends up with your estate. If you have no surviving relatives, your estate goes to the state school fund.
Without a will the intestacy laws say that your personal representative will be the following in order of priority: (1) your surviving spouse; (2) any other heir; or (3) 45 days after your death, any creditor of the estate. Therefore, it is possible that one of your estate’s creditors may file an application with the court and be appointed your estate’s personal representative.
Will You Make a Will?
If you are unconcerned where your property ends up because, “You can’t take it with you” then the intestacy laws are great. But if you want to make sure your property is administered as you desire, then you should make a will. Review your will periodically to make sure it complies with your wishes. We would be happy to answer your questions about wills and estate planning. Feel free to contact us.
©Terry Jessop & Bitner September 2014