No Will? You May Want to Think Again.

A person who fails to execute a will effectively allows the state to do it for him. If some state laws were put in the form of a will, it would look something like the one below.

I, _________________________, hereby publish and declare this to be my Last Will and Testament.

ARTICLE I

My spouse shall have one-third of my property, and my children shall have the other two-thirds, even if my children are minors or even infants at the time of my death.

ARTICLE II

The Probate Court may appoint anyone of its own choosing to be my personal representative and probe into my personal affairs.

ARTICLE III

If my spouse survives me, I appoint her (him) as guardian of my minor children. However, I require that she (he) give periodic accountings to the Probate Court of the expenditures on behalf of my children.

1. I also require that my spouse obtain a bond to assure that she (he) carries out the guardianship duties satisfactorily.
2. Further, when my children reach the legal age of majority, they may demand a full accounting from my spouse of all funds expended on their behalf.
3. In the event my spouse does not survive me, then the Probate Court may select anyone it wishes to be the guardian of my minor children.

ARTICLE IV

If my surviving spouse remarries, her second husband (his second wife) shall be entitled to at least one-third of my surviving spouse’s property, including that which I left to her (him). The second husband (wife) shall not be obligated to use any of my original property or my spouse’s property to support my children.

ARTICLE V

While there are steps I could take to reduce my income and death taxes, I have consciously decided to pay as much tax as possible to the state and federal governments, rather than preserving such funds for the benefit of my family.

ARTICLE VI

If all of my family predeceases me, I cheerfully leave all of my property to the State of _____________________________.

In witness whereof, I have executed this, my Last Will and Testament, this ____________________ day of ____________________, 20____________

_______________________________
Intestate

The above “will simile” is sometimes used to point out the necessity of having a will. Some couples think that all their assets will automatically pass to the surviving spouse upon their death, which is not the case. However, many of a couple’s significant assets will pass via title or beneficiary designation. For example, if the title to their home is “joint tenants with rights of survivorship” the home will pass to the surviving spouse…with or without a will. Similarly, a life insurance policy, IRA, 401(k) and other retirement accounts will pass via beneficiary designations…with or without a will.

One of the important reasons for a couple with minor children to have a will is to name their choice of a custodian for their children in the event they both die in a common accident. The court has final authority to appoint the guardian, but the testator’s nomination is given high regard by the court.

Lastly, you can bequest specific items of personal property (jewelry, art, family heirlooms) in your will. This specific bequest is stated in your will and provides that if that particular beneficiary is not living, then the property passes to an alternate beneficiary or passes as a general gift to a group of beneficiaries.

Posted by Don James, CPA, CFP