Every adult should have a will. If you die without a will, state intestacy law will likely determine who inherits your property. These rules are exactly the same for everybody, regardless of his or her circumstances.
When you die without a will, you let your state legislators write a will for you. Chances are their choices won’t match your desires. Most intestacy laws leave your entire estate to your surviving spouse and/or your children. If you have no spouse or children, your estate will probably go to your parents or siblings.
Here are just a few situations that intestacy laws are not designed to handle: you want to leave gifts to someone other than your spouse and children; you want to leave most of your estate to your spouse, then want whatever remains after your spouse’s death to go to children from a prior marriage; you want to leave your children unequal shares of your estate.
You need a will even if you think you have disposed of all your property through a revocable living trust. Property can pass to your beneficiaries through your living trust only if you have transferred the property into the trust.
- You may forget or neglect to transfer some property to your trust.
- You may acquire property shortly before death and not have a chance to transfer it to your trust.
- Your estate may acquire property after you die. For example, you may have an inheritance that’s tied up in probate until after your death, or you may be a party to a lawsuit that does not settle until after your death.
In these cases, without a will, the property will pass in accordance with your state’s intestacy laws. With a will, it can pass into your living trust or to whomever you name as your residuary beneficiaries. They will take any property that your will doesn’t otherwise dispose of.
Here are three more reasons why you need a will, even if you have a living trust:
Some property is better disposed of by a will than a living trust. For example, motor vehicles are not typically transferred to a living trust because insurance companies hesitate to ensure such vehicles.
You may need to name a guardian for minor children. In most places, you can name a guardian only in a will.
You may want to use a will to dispose of small ticket items if probate won’t be required or will be inexpensive.
My booklet, What You Should Know about Wills, explains the requirements for a legal will, what property you can and can’t pass with a will, what provisions should be included in your will, and where you should store it.