Why Is It Important to Have a Will?

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It is important that each person have a will that directs their family members and loved ones on how they want their final wishes to be carried out (i.e., burial, cremation, etc.), as well as how they want their estate to be divided after their death.

It is usually easier for family members or friends to carry out one's explicit wishes about how an estate should be divided, rather than having them guess or, worse yet, argue about what the lost loved one would have wanted or what the survivors “deserve” or are “entitled” to.

When one fails to leave a will, their estate is usually divided according to the laws of the state of their last residence before death. These laws vary widely from jurisdiction to jurisdiction, so for specific information on probate laws in your location, contact a local attorney experienced in estate law. Generally, however, when one dies and leaves behind a spouse the spouse will receive the majority of the estate. There is no guarantee, however, and other factors, such as estate taxes, can take their toll, as well. Other heirs may have a right to a portion of the estate, as well.

Division of an estate can differ in a variety of ways based on whether there is a spouse, children, and other factors. This can be complicated if there were previous marriages or previous children. Additionally, property that is part of an estate, that was acquired by gift or inheritance may be divided differently than property that was acquired during a marriage. There may also be tax implications for the ways different types or property get passed, meaning there is less to pass onto survivors after the government takes its cut.

A good probate attorney can explain the law on the distribution of an estate after death, and help you create a plan for an organized distribution of your estate according to your wishes. A will that states your wishes saves your family members time and money and allows them to focus on more important issues. It can also prevent unfortunate disputes after your death and protect your survivors from some liabilities and other headaches that may arise when dealing with discharging debts and other obligations left behind after one's death.

Additionally, depending on your jurisdiction and other factors, if you own real estate and fail to leave a will, many of your heirs may inherit a concurrent ownership interest. When multiple people have ownership interests in real estate, it can make it difficult to sell, finance, or transfer the property without the unanimous agreement of all owners.

In addition to a will, a number of other documents can be useful to plan for future financial and health care issues in the event you become unable to tend to these matters on your own. Many people fall ill or become disabled at a time when they least expect it, and having these matters resolved prior to that can reassure you that your wishes will be carried out. For example, a Power of Attorney will allow a trusted family member or friend to act on your behalf in private or financial affairs if you become incapacitated. A medical Power of Attorney allows you to designate a trusted family member or friend to make medical decisions on your behalf should you become unable to make medical decisions, on your own, in the future. A “Living Will” or a Directive to a Physician allows you to state in writing what kind of life sustaining health care treatment you would want medical personnel to perform on you in the event that you become terminally ill or injured and are unable or incapable of making medical decisions. Additionally, creating certain types of trusts may help your loved ones avoid certain kinds of tax consequences resulting from your passing and speed the transition of ownership without requiring proceedings in probate court.

As you can see, leaving a will and other types of documents can ease the burden your passing or incapacitation will create for friends or loved ones. While the law provides mechanisms for dealing with your estate even if you do not leave a will, having a well thought out estate plan ahead of time can make the process after your passage much less stressful for your family and friends and ensure that you can leave more of your legacy behind for them after you are gone.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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