By: Maryanne McGonagle
A question we are often asked is whether a client needs a Will? While seemingly an easy question, there is a different answer for every client:
IF you are married and have no children; you and your spouse own your property jointly, including your home and any other realty; and/or your spouse is named as the beneficiary on all the assets that you hold in your name alone, e.g. retirement accounts, stocks, annuities, IRAs etc., then I would advise you that you may not need a Will.
On your death, your assets will pass to your spouse as a matter of law (even title to your vehicle can be transferred to the surviving spouse at the DMV with little fanfare).
In the event that there is a probate asset overlooked that does need to go through probate, the intestacy statute presumes that you would have wanted your spouse to take it and names the spouse as your heir, provided that there are no children from another marriage.
For most clients with more complicated family patterns, e.g. minor children for whom trustees and guardians must be nominated; and/or bequests for children from other marriages or for other parties, a Will is the only method to ensure that one’s wishes with regard to their property and the future care and custody of their children are known and carried out in full.
Probate v. Non-Probate
It is also essential to understand that your Will only controls disposition of your probate assets. These are assets that you own in your name alone (i.e. property with no joint or co-owner or beneficiary).
For example, a life insurance policy on your life with no beneficiary named is a non-probate asset. It will be paid to your estate and distributed according to the terms of your Will or the intestacy statute if you die without a Will. A life insurance policy with a beneficiary is a probate asset and is paid directly to that beneficiary.
It’s important to review your assets and determine how they are titled and make sure the beneficiary information is as you would like. Regardless of the terms of your Will, the beneficiary/ownership information on non-probate assets will control.
Even clients with mostly non-probate assets often do a Will as a “catch all” just to be certain that in the event that they do leave forgotten probate property, it is distributed in accordance with their wishes.
At Graeber, Davis & Cantwell, we offer a free ½ hour consultation for estate planning purposes. Our basic package estate planning documents includes reciprocal Wills; Health Care Proxies; and Durable Powers of Attorneys.