by Jonathan A. Nelson
We wrote recently that there are times when a trust isn’t the best tool. But are there times when you shouldn’t even have a will?
As one who is frequently counsel to the survivors, I want to say unequivocally, “Of course, everyone should have a will.” But what reasons do I hear people give, and what do I think of those reasons?
1. “A will provides no benefit to me.” Superficially, this is true – you have to die before a will takes effect, so what good does it do you? Without going too deep into philosophy, a will makes sense for people who see themselves as part of a community that is larger than themselves, including the future community this legacy connects them to. Thinking about how you want your assets distributed can be a useful exercise to assessing who and where your community is, or could be.
2. “I have no obvious beneficiaries.” In conjunction with the previous item, this may be a good time to think about the relationships you can build. Naming beneficiaries under a will is in your control, and can include friends and neighbors, particular extended family members, godchildren, your house of worship, and charities doing work you care about. If you do not leave a will directing where your assets go, your state’s default provisions for descent of property may not be what you would have picked or may divide the estate in so many directions that administration of the estate becomes burdensome.
3. “My life is too much in flux right now.” There is rarely an estate plan that will never need to change, and waiting for the right time runs a risk of “the right time” never coming along. As life happens, sometimes the plan requires updates. Occasionally we do prepare documents we know are temporary, but often who and what are important above all else don’t end up changing as much as people think, and putting in place provisions covering those while allowing for some contingencies is important planning.
4. “My survivors will know what to do.” (or, “My survivors will do the right thing.”) I have helped enough families through the estate process that I am just going to say it – if you want it done, write it down. People misunderstand things, people have different opinions or assumptions from each other on what they think you would have wanted, and people may have memories of things said at different times that are not wholly consistent with each other or your current wishes. Sometimes the unexpected means not all of the plan can be followed, and having a will with enough detail may be the only way to enforce what your highest priorities are.
5. “Everyone is just going to fight about it anyway.” There is a lot that can be done in a will (or other estate planning documents) to anticipate conflict and try to reduce the opportunities for strife to take root. This requires an attorney willing to listen and able to find creative solutions, not just one who wants to fit the family into a prefabricated plan.
6. “I don’t have enough assets.” With low enough assets, the will may not be needed for probate administration, but it can still be very helpful – if nothing else because it names someone to be in charge of the decisions that need to be made and to get the process started before unnecessary costs start depleting what assets there are.
7. “Why write something if my creditors / back taxes / ex will take it all anyway?” An estate you know will be insolvent can be one of the more difficult situations to plan through, and there are times when the best solution is for the named executor to walk away instead of qualifying. However, it can still be prudent to give the right person the option of being in charge and seeing what can be done to help your loved ones, rather than just handing the reins to the creditors.
This list presumes a will crafted with reasonable skill – there certainly are times when a bad will is worse than no will at all. But nearly without exception, even when there are minimal assets requiring administration, it is helpful to have a will naming someone to oversee decision-making.
In summary, a will requires thinking beyond one’s own lifetime, and requires a certain humility and unselfishness to recognize the place one has in his or her community. But it is an act of kindness to one’s survivors, and gives opportunities to impact one’s community and family in positive ways. Taken as a whole, estate plan documents are a strong expression to your survivors of what your ultimate priorities are -- and that is worth a little thought.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.