Do I need a will?

Before answering what a will does, let’s see what happens when you die.

Lets start with some very basic information.

In our society we have different court systems to resolve different disputes in society.

For example, we have criminal courts where people are heard regarding the crimes they are accused of.

We have civil courts where nobody is accused of a crime but there are civil lawsuits, like the johnny depp, amber heard trial that was in civil court as opposed to criminal court.

We even have small claims courts that are heard before a judge, or, “bench trials” as opposed to jury trials.

There are juvenile courts where certain family matters are heard. There are also appeals courts, supreme courts, and federal criminal courts, etc the list goes on and on.

One court that you may hear of is probate court. You can google probate court in your town and you will likely see the probate court for your district.

A probate court typically handles guardianships, conservatorships, family matters and DEATH.

Yes, death…

When you die your assets and being become whats called your “estate” and your “estate” must go through the probate court. Even if you don’t own anything at all your “estate” goes through probate.

You may be asking… but why?

Well, when people die disputes arise over their estate. Relatives and friends may argue that they should’ve received something from the estate, or that they were owed something, etc etc.

Probate functions as a forum for these disputes to be heard. Creditors may come to probate and say wait a minute, before kurt Cobain died he never paid off his home depot credit card and he owes us money. His kids may come in and say yeah and dad also said he’d give me more money than the other siblings? And kurts friend may come in and say “I helped kurt get out of bed every day when he was depressed and I expect to be compensated for helping take care of him”, etc etc.

Probate typically takes many months to hear disputes, to notify creditors, and to make final distributions of the assets.

So what does a will do?

Well, a will is the first step in the probate process. First and foremost a will streamlines the probate process.

A will nominates and executor, or a person who you trust to handle your affairs when you die. This way you don’t need to waste court time appointing one.

Secondly a will can waive the bond requirement that some probate courts have. What’s that mean? Well, if you don’t have a will that appoints and executor and waives the bond, courts will appoint an executor and have them post a bond to insure that they wont run off with the decedents assets.

This can be costly and time consuming.

Thirdly, a will distributes your assets in the way that you want. It also serves as kind of an instruction guide to your family as to how you want your death to be carried out. You can make burial wishes in your will, you can even put a poem you want read at your funeral in your will.

Now, not every request you put in a will is going to be legally binding, e.g. requests for a poem to be read at your funeral,  but hopefully your family will honor your intentions.

The stuff that is legally binding in a will are the distributions of your assets. If you say “100k to my mom” then 100k will go to your mom. If you say “my house to my son” your house will go to your son. Except, as a side note, if there isn’t enough money in your estate or if there are creditors with higher priority.

So what happens if you die without a will?

If you die without a will the court will appoint an executor for you they may have to pay a bond, then your assets will be distributed by the laws of intestacy.

The laws of intestacy are default rules that say where your assets go if you die without a will.

You can google “laws of intestacy” in your state and read the statutes. They’re pretty straight forward.

Most states say that a spouse gets half or sometimes more or less, then kids get the rest. OR, if you don’t have kids then it goes to your parents. And if you don’t have relatives the state searches your whole family tree.

If you really don’t have any heirs at all, then the state takes your stuff. This is rare and also a reason to put in your will that if no heirs are found then you give everything to a charity.

In sum, the intestacy laws give your stuff to your closest relatives.

So now that you know why a will is important lets go over the requirements.

1. Testamentary capacity. You need to be of sound mind. Of sound mind is a flexible concept, you can fade in and out of having a sound mind. Sound mind typically means that you understand the extent of your “bounty” or assets. A patient with dementia can snap into it then back out of it. If they’re in a lucid moment, it’s OK. Keep in mind the standard, in MA, for signing a power of attorney is more like a contractual standard. You need to understand the nature of the document and consequences. The court may ask would a reasonable person have written that Power of attorney. Anyway, I’m on a  tangent.
2. Over the age of 18. This is a plain and simple requirement.
3. Need to have two disinterested witnesses.
   Two witnesses who sign in your presence,  the legal requirements of presence varies by state. It’s best that the witnesses sign with you in the same room. They also need to be disinterested, meaning that they will not receive any gifts in the will. If a person who is receiving a gift in a will signs as a witness, their gift is actually invalidated. Also, a good friend of a person left in a will or a lawyer will also be a problem. So try to get someone who really is completely disinterested and couldn’t be perceived as potentially having nay interest in the will either directly or through a family member or friend.

So here are key takeaways. A will is a good thing to have. Make sure to 1) appoint an executor you trust, and a good back up one. 2) waive the bond requirement 3) have two witnesses sign in your presence. And 4) make sure the witnesses are totally disinterested, meaning make sure they are not left anything in the will.