PSA: Dying intestate is a P.I.T.A.- take care of your “final arrangements”.

[Dannyalcatraz]

In my life, I’ve had to deal with the estates of several people, in both a personal and professional capacity. Of all the several passings, few of the people had a will. And that’s a problem.

Wills are not the only end-of-life document out there, nor is one the solution for all potential issues that may arise during an estate administration. If people want to fight, they’ll fight. But it’s a starting point; a cornerstone of even the most basic estate plan. Everyone should have one.

TO BE CLEAR: I’m an attorney in Texas, and I don’t have one. I don’t have kids, and none of my legal heirs shares my interests- IOW, nobody really wants most of my stuff. Texas’ intestacy laws would generally satisfy my testamentary intent. But I’m still working on drafting one. Why?

1. Depending on where you live, intestacy can actually create expenses for your estate. In Texas (and other states), the executor of an intestate estate is legally required to prove the decedent had no unknown children, and that means hiring a private investigator.
2. Wills clarify issues. They’re no panacea- people challenge will provisions all of the time or outright ignore them- but the will has legal force behind it and is admissible in court. Even before landing in court, knowing “Aunt Alice” wanted to donate her car to the Lighthouse for the Blind could prevent bickering over which of her nieces and nephews should have it.
3. One of the first tasks in drafting wills is usually appointing an executor. Sometimes multiple contingent or co-executors. The executor performs several vital functions in managing the probate process. Estates without executors raise all kinds of problems in probate, and often, the court will appoint someone. Who this will be can become yet another source of friction between presumptive heirs.
4. Even if you’re like me and you’re certain nobody wants most of your stuff, odds are good SOMEONE wants SOMETHING you own, even if it’s just a memento. They just may not have told you.

The death of someone close can be an emotional time, and can bring out the good or bad in people. And unfortunately, the bad can be awful. I’ve seen some cases where certain relatives looted a deceased person’s house while everyone else was at the ceremony. I’ve seen siblings jeopardizing their inheritance by round-robin squabbles over opinions that are actually not supported by law.

Wildcard: the states involved have laws that state partial owners can force sale without the consent of other owners. All they have to do is give the other owners their legal share of the proceeds of the sale. Imagine an intestacy where people are fighting over a house, and one of the heirs is contemplating initiating a forced sale so they don’t have to deal with the other heirs because they’re “sick of the BS”. I don’t have to imagine it- I’m looking at 3 of those right now in my own family. Some of the battles have been going on for decades.

Finally, another viewpoint from my old Wills & Estates professor, a spritely human being named Stanley M. Johanson. He advocated that, while wills were good, it was better to “remember” people when you’re alive. If/when you can, he advised, give them something you know they’d want you to leave them in your will. That way, you get the joy of seeing their expression. My Mom has been on both sides of that.

And of course, check out the laws in your own state or country for the info that applies to your specific situation. Ideally, with someone who deals with wills & estates regularly.

 

[Aeson]

I'm kinda in the same boat as you. I do have a teenage niece and nephew I'd like to leave stuff to. I don't think they'll want my gaming stuff. I'd like to liquidate the stuff and add the money to my savings and investments and create a trust for them.

 

[Ryujin]

I definitely need to get both a will and a living will in place. When my mother passed things went relatively smoothly, because she had time to think it all out beforehand. I don't want to leave a mess that anyone else needs to clean up. Fortunately, at least right now, I have no debts.

 

[Dannyalcatraz]

Talking with one of my cousins reminded me of:

5. Disinheriting someone is surprising popular. A lot of people have relatives they absolutely do not want to inherit any of their stuff. Intestacy laws don’t care. Your Dad left your Mom and had a 2nd family with the Homewrecker Hussy? Your half-siblings are potentially your heirs in the eyes of the law. Got a kid who is 1 felony away from going to jail for life, but you love your nieces & nephews? A will can cut him out of your estate while gifting something to his offspring. Same goes for skipping a generation for inheritance tax purposes (not a common problem, but…. ).

6. Leaving things to charities is something a lot of us think about, but intestacy laws don’t address that option at all. So if you’re a charitably minded person, you absolutely should use a will to ensure your faves get taken care of.

 

[Aeson]

Point 5 is a good one. I'm estranged from my older half sisters and their adult spawn. My IRAs and brokerage account have places to add beneficiaries. Is that enough? Can I just add my youngest niece and nephew to the beneficiaries?

 

[Benjamin Olson]

It's also good, where feasible, to actually tell probable heirs what your intentions are, as well as getting them in a will, especially if you plan to disinherit someone who might feel entitled to something. It both makes it harder to challenge the will if it was consistent with intentions people were familiar with you having, and it generally saves on unwanted surprises at an emotional time.

Wills are not a good venue for grand, unnecessary, dramatic twists, despite what movies would have you believe.

 

[Dannyalcatraz]

Point 5 is a good one. I'm estranged from my older half sisters and their adult spawn. My IRAs and brokerage account have places to add beneficiaries. Is that enough? Can I just add my youngest niece and nephew to the beneficiaries?

The beneficiary designations in a document like a IRA, brokerage account, insurance policy, etc. actually trumps a will by keeping the covered assets out of a will. You can, of course, use those same designations to include the assets in your will, or a trust, or whatever.

 

[MGibster]

I'm going to piggy back on the PSA and talk about life insurance. For new employee orientation, I talk to our new hires about their options for additional life and accidental death & dismemberment insurance. As an employee, they're all automatically enrolled in a basic life and an AD&D plan that covers them at twice their base salary at no charge to them. But they have have an option for voluntary group term life inusrance and AD&D for additional coverage.

A lot of younger people think, "Well, the basic life that cost me nothing and covers me at $110,000, that's plenty." Maybe if you're single, but it's not enough if you have a family. That $110,000 might cover your family for the short term but you've got to consider where they're going to be 3, 5, or even 7 years after you're gone. Do they have a place to live? Are your children's educational needs being met? What about their basic needs? Consider getting a decent life insurance policy based on the needs of your family without you in the picture.

Oh, and take care of your estate planning. It's a pain the ass for your loved ones having to deal with your loss in addition to trying to figure out what to do with your property. Nobody in my family is going to want my Warhammer 40k collection or my RPG books, unless my nieces turn out to be huge nerds, and I should really plan for that.

 

[edosan]

My mother didn’t know it would be the last year of her life but she spent a lot of time getting her affairs in order and sitting me down and talking me through it all. It was still a PITA to get everything straightened out but nowhere near as bad if she hadn’t done that.

My goal is to make my estate even easier to deal with when I’m gone.

 

[Dannyalcatraz]

I'm kinda in the same boat as you. I do have a teenage niece and nephew I'd like to leave stuff to. I don't think they'll want my gaming stuff. I'd like to liquidate the stuff and add the money to my savings and investments and create a trust for them.

Obviously, you need to talk to a local pro for details, but one of my favorite trusts is something that used to be called a “Health, Education and Welfare“ (HEW) Trust. (They’ve got a different name now, but it escapes me.) Assets in HEW trusts can ONLY be used for expenses that fall into one of those named categories. As such, it’s a great way to leave someone a sizable trust that is protected from a lot of actions that might otherwise go after those funds.

The courts can be expansive about those categories, especially the last one, but anyone making a claim against the trust beneficiaries will be barred from going after trust assets if the court thinks they don’t qualify. So the trustee can order disbursements for a medical procedure, for tuition, or a car to go to work (even a fancy one), but someone suing the trustees for injuries in a car accident would be barred from going after trust assets.

It also protects the trust assets from the bad decisions of the trust beneficiaries. Barring fraud or exotic circumstances, they can’t use it for collateral; for investment in dodgy business deals; for wild shopping sprees. They can’t gamble it away.

 

[Dannyalcatraz]

Went looking- the new term for HEW Trusts is HEMS Trusts. HEMS = Health, Education, Maintenance & Support. Here’s an excerpt from a little guide I found.

Examples of HEMS ​

Health, Education, Maintenance and Support are rather broad categories, but what do they include, exactly? The exact items included can vary by state, but here are examples of HEMS that are commonly included.

Examples of Health

Some basic examples in the Health category include:

• Routine health care
• Hospital care
• Emergency medical treatment
• Psychiatric or psychological care
• Prescription drugs
• Dental
• Vision

The following may also be considered included in this category:

• Elective procedures like LASIK or cosmetic surgery
• Alternative medicine treatments
• Gym, sports club, or spa memberships
• Health supplements

Examples of Education

This category commonly includes:

• Tuition for all levels of schooling from grammar to graduate, professional, or technical school or training
• Continuing education expenses
• Expenses for school-related programs, such as Study Abroad in college
• Support during schooling years, even during summers and other breaks

Examples of Maintenance and Support

“Maintenance” and “support” are one and the same. Commonly included in this category:

• Mortgage or rent payments
• Property taxes
• Premiums for health, life, and property insurance
• Travel and vacation expenses
• Charitable giving

This category is the least clearly defined. It’s typically interpreted to include distributions that help maintain the beneficiary’s standard of living. Distributions to cover expenses that are solely for the beneficiary’s happiness rather than support do not fall under this category.

Tangent: I’ve been a proponent of including HEW/HEMS Trusts in a variety of contracts & other agreements that could result in windfalls, especially when the benefits could fall to minors. My primary area of advocating them was in sports and entertainment contracts, where youths can often become millionaires years before the age of majority. My pitch was along the lines of it meaning you may not have a mansion and a supercar next year, but you and your family will ALWAYS have a house and vehicles for the rest of your lives.

My secondary area of advocacy was for lottery winners.

 

[Lanefan]

Pardon some cynicism here but someone has to say it: the OP is a lawyer; and while no doubt speaking from the best of intentions, still as such has a vested interest (for self or for other lawyers) in getting people to do up wills, as to the best of my knowledge a binding will cannot be done up without involving a lawyer somewhere along the line - and lawyers don't usually work for free.

Now if a binding will could be done without a lawyer's involvement (or said involvement was taken as a no-charge public duty) and thus at zero cost, I'd be in full agreement with the OP. As it sits, though, the costs of doing up a will (I've looked into it) represent money I neither have nor would wish to spend.

Disclaimer: I'm in Canada; things might work differently in other countries.

 

[Benjamin Olson]

Pardon some cynicism here but someone has to say it: the OP is a lawyer; and while no doubt speaking from the best of intentions, still as such has a vested interest (for self or for other lawyers) in getting people to do up wills, as to the best of my knowledge a binding will cannot be done up without involving a lawyer somewhere along the line - and lawyers don't usually work for free.

Generally in common law jurisdictions (basically the Angloshere) a will just needs to be signed by a testator (of adult age and with the necessary mental capacity) and a witness. The witness need not be a lawyer. In many common law jurisdictions a handwritten will does not require a witness. However the witness is not just something courts made up to make wills fail, it's about verifying that the will is authentic, and part of what you get from a lawyer's service is a professional who will attest to the documents authenticity. I can't speak for the requirements of civil law jurisdictions on this front, they love notaries a lot more than the common law ones. My understanding is that your country of Canada does not generally require professionally prepared wills, though I can not speak to all jurisdictions within Canada, or to how well non-professionally prepared wills generally hold up in a Canadian court.

Check the requirements in your jurisdiction, and hire a lawyer if you can afford one. There are many form wills online, and these are often appropriate to the average person's needs, but make sure they are created specifically for your jurisdiction. If you choose to not use an attorney then it is harder to be certain that your intentions will actually be written in a way a court will recognize, and the main skill lawyers have in terms of drafting wills is practice in making things clear and unambiguous to a court of law, including under unforeseen circumstances.

Once again I'll reiterate what I said in a prior post that just making clear your intentions to family while you're still alive helps verify the authenticity of a will consistent with those intentions, and makes the will more likely to go unchallenged by family, whether it was created with the assistance of a lawyer or not.

I am not an attorney, but I am an American law school graduate who briefly worked as a lawyer in a practice that never dealt with any wills. Impute on me whatever biases from that background you must.

 

[Mad_Jack]

I am not an attorney, but I am an American law school graduate who briefly worked as a lawyer in a practice that never dealt with any wills. Impute on me whatever biases from that background you must.

So... you're a recovering lawyer?

 

[Ryujin]

Pardon some cynicism here but someone has to say it: the OP is a lawyer; and while no doubt speaking from the best of intentions, still as such has a vested interest (for self or for other lawyers) in getting people to do up wills, as to the best of my knowledge a binding will cannot be done up without involving a lawyer somewhere along the line - and lawyers don't usually work for free.

Now if a binding will could be done without a lawyer's involvement (or said involvement was taken as a no-charge public duty) and thus at zero cost, I'd be in full agreement with the OP. As it sits, though, the costs of doing up a will (I've looked into it) represent money I neither have nor would wish to spend.

Disclaimer: I'm in Canada; things might work differently in other countries.

In Canada it can be as simple as making your wishes clearly known. It's still best to have a lawyer involved, at some point, as clarity has degrees.

Dying Saskatchewan farmer’s will goes down in history | Globalnews.ca

The story of a Saskatchewan farmer and the infamous tractor fender will told by the last surviving witness.

globalnews.ca

 

[Benjamin Olson]

So... you're a recovering lawyer?

I used to make that exact joke a lot. But at this point it's been 10 years, so hopefully I'm mostly recovered.

 

[Dannyalcatraz]

Pardon some cynicism here but someone has to say it: the OP is a lawyer; and while no doubt speaking from the best of intentions, still as such has a vested interest (for self or for other lawyers) in getting people to do up wills, as to the best of my knowledge a binding will cannot be done up without involving a lawyer somewhere along the line - and lawyers don't usually work for free.

A good concern to raise. FWIW, Wills/estate planning/probate are areas I only get involved with as a last resort. It’s not my primary area of practice. Personally, I’ve turned down more work in that arena than I’ve done.

AFAIK, while using an attorney to draft a will is advised- especially if you have complex legal issues to deal with- it isn’t REQUIRED in any American jurisdiction I know of. All that’s required is a testator with testamentary intent and the capacity to commit it to a permanent form. My W&E prof used to say that the most dangerous thing in that area was a client behind a closed door with a pen and notepad because holographic (“written in your own handwriting”) wills are 100% legal in Texas. The shortest will in Texas history was holographic: “Mom takes all.” (Sadly, written in the dirt by a dying young man trapped under a rolled-over tractor.)

There are pitfalls to DIY, though. While a holographic will is legal, it MUST be written entirely in your own handwriting. You can’t use a fill-in-the-blank forms you’d find in office supply stores or online, because Texas probate courts will ONLY look at the handwritten parts.

If you want to DIY, the best advice I can give is:

1) be patient and do your research before writing your actual will.

2) Brainstorm with those you trust, just to make sure you don’t forget something.

3) take notes, but make clear (on every page, if you’re using physical paper) that they’re just notes, not your actual will.

4) check with any law schools in your vicinity to see if they have any student legal clinics, and if so, do they do anything regarding wills. Most law clinics are greatly discounted or 100% pro bono (free), and the students have faculty & volunteer supervision .

 

[Galandris]

I can't speak for the requirements of civil law jurisdictions on this front, they love notaries a lot more than the common law ones.

Can't speak for all of them either, but to illustrate your point, in France, you can have a handwritten legacy -- interestingly the provisions are the same as in Texas, in that it must be 100% handwritten, not typed -- that you keep at home for no cost. It doesn't really help if nobody knows about it, so you can have a notary either be tasked to just keep a copy of your will (that you give him in a closed enveloppe) and he will inform a central public agency about the date of the will and the fact he has it (for a total cost of 27 €) or have the notary type it, with two witness present, according to your specification (for a total cost of 114 €). This way, the content of the will is public before death and it can avoid a lot of drama. The price are rather reasonable I'd say.

In other note, you don't need to own a sizeable estate to make a will useful. Sometimes, saying which person will have a specific item of mostly sentimental value might avoid trouble between the heirs.

Of course, redacting a will can be complex depending on situation, and, unlike in the US, some heir are entitled to a minimum part of the estate, you can't let them nothing, and a will can be cancelled in court if it doesn't leave the minimum legal part. Disinheriting totally isn't allowed, so getting some legal advice, irrespective of notarization, is certainly useful in case of significant estate.

 

[Dannyalcatraz]

Clarifying “holographic” in Texas law: while it means “in your own handwriting”, in practice, it means that the document must all be committed to permanent form in one way. All the words on the page must be put there by you.

So, as mentioned, if you get a fill in the blank will, the court will only look at the handwritten parts. This is true even if the will is 99%+ handwritten- anything typed in will be ignored.

But if you decide to type up your will because-like me- your handwriting is atrocious- that’s 100% OK as well. Just make sure its ALL typewritten.

 

[Mad_Jack]

Clarifying “holographic” in Texas law:

You mean we don't get to push the red button and see the deceased pop up Princess Leia-style and say, "If you're seeing this message, I'm dead."? Well, that sucks.