A common question estate planning and elder law attorneys often get asked is "Do I really need a will?" (The next question is always, "How much does it cost?" but we'll discuss that another day!)

Most people would assume that an estate planning attorney would always answer "Yes, of course," but such is not the case. Many people simply have no need for a will. But let's take a look at why you may indeed want to have a will.

First, only in a will can you name the person(s) whom you would prefer to handle your estate after your death. Such person is called the "Executor" in some states, the "Personal Representative" in others. In any case, this person is the one who files the original will in court (usually with the help of an attorney), gathers and protects all your assets, pays all your debts, files the estate tax return (if necessary), and distributes your property in accordance with your directions as set forth in the will.

With no will, someone still has to go to court to get the legal authority to deal with your property and do the same tasks as the Executor, but this time it is up to the probate court judge who that person is. Since you left no indication whom you wanted, a battle could ensue. A will solves that problem, since it is rare that the court will not appoint the person(s) you named as Executor in your will.

The second big reason to have a will is if you wish to distribute your property in a way that differs from the default rules of your state. Every state has a statutory will, essentially, for those who did not write their own will. This scheme of distribution is called "intestacy" ("testate" means will, so "intestate" means with no will). For example, most state intestacy laws say that upon your death all of your money, assets, and real estate pass to your surviving spouse, if any, then in equal shares to your children, outright.

So a good reason to have a will would be any of these reasons:

  • You don't want to leave everything to your spouse.
  • You want to leave more to one child than another.
  • You have minor children and want to hold back their access to your money until they are at least age 25 or 30.
  • You'd like to leave $10,000 to your alma mater or your church or temple.
  • You want to "cut out" one of your children.
  • You'd like to leave money to a family member in a way that is protected against lawsuits, creditors, and divorcing spouses.
  • You'd like to leave a small sum to each of your grandchildren or a daughter-in-law.
  • Your parents are living, you have no spouse or children, and you want your assets to go to your siblings and not your parents.

So who does not need a will, then?

  • Your estate is relatively small and you're happy with how your estate would be divided and distributed under your state's intestacy laws.
  • You've completely avoided probate by using "P.O.D.," "T.O.D.," joint ownership with right of survivorship, a trust, or beneficiary designations on all your assets.
  • You're content having all your assets be immediately distributed to your heirs, regardless of their age or ability to handle money.
  • You're not overly concerned with who will handle the affairs of your estate after your death.

Finally, before you consider the cost of a will, consider the real cost if your wishes were not carried out because you needed a will but did not have one. Sometimes even the simplest will is better than no will at all!

Attorney K. Gabriel Heiser has devoted his legal practice to Medicaid planning, elder law, and estate planning for the last 23 years.

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