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    Back to Category » Why Have a Will? What’s a Trust Good for?

    About 20 years ago, it was said on a radio talk show, hosted by a lawyer, that nearly 50% of the people who should know better, namely, lawyers, die without a will. You have probably heard the story that former chief justice of the U.S. Supreme Court, Warren Burger, prepared his own will. Apparently, the will he drafted was convoluted and led to much controversy for years following his death, costing his heirs a lot of money. If instead Burger had gone to a lawyer familiar with the applicable law and paid a bit of money at the inception, it would have saved his heirs a lot of expense.

     

    1. What can a will accomplish?

    Quite aside from these anecdotes, perhaps the first point of inquiry is what purpose does a will serve? A will is simply a document which lays out how a person wishes to have his or her assets distributed upon death. In the will, the person writing the will, called a testator, designates a person or company, called an executor, to see that the wishes in the will are carried out following death. With only certain limitations, a person can dispose of assets in any fashion they want. For instance, a father may say in his will that he wants his wife to inherit 50% of his estate, his eldest daughter to acquire 20%, and his remaining three children to inherit only 10% each. It is the duty of the executor to see that the wishes of the testator are carried out.

    The vast majority of people own assets that can be considered generic or fungible. Rental income properties and stocks and bonds are common examples. There is nothing terribly unique about those types of assets. Most people making wills are not concerned that specific stocks or bonds go to their heirs. They are just as satisfied that these assets are sold and converted into cash, and the proceeds from the sale are turned over to their heirs.

    Some people, however, have very specific assets, such as family heirlooms, precious gems, and priceless paintings. They may feel very strongly about to whom the items are to be given. In that case, the testator may designate his oldest son to receive his Civil War rifle, his oldest daughter to take over the family’s china set from Victorian England, the second son to inherit the Monet painting and so on. With very specific gifts, a will can readily address matters that are meaningful to the testator.

     

    1. What happens if there is no will?

    When a person dies without a will, the need to dispose of assets still exists. Each state has its own set of laws dealing with those who die without a will or other testamentary document. Those laws are known as “intestate succession” laws. For instance, in California, if a man dies leaving a wife and only one child, they each share 50%. If he dies leaving a wife and more than one child, then the wife receives one-third, with the children receiving two-thirds. In the event there are no heirs (i.e., no parents, aunts, uncles, grandparents, etc.), then the assets are given to the State of California.

    Most people would prefer to distribute property according to their individual wishes, and not leave distribution to the arbitrary system under the intestate laws. Having a will ensures the testator that assets will be distributed according to his wishes.

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