10 Reasons to Have a Last Will and Testament & to Keep it Current

Sep 5, 2010
David J. Shestokas

Shakespeare's Will - William Shakespeare

About 70 percent of Americans do not have a will. Many procrastinate, believing they do not have enough assets, or not wanting to consider their mortality.

For individuals that do not have a will they have written, in reality a will has been written for them. State law determines what happens to the estate of someone dying without a will or “intestate”.

Americans without a will are permitting their state legislatures to write a will for them. Without a will, they leave critical issues such as family support, distribution timing, guardianship and estate tax issues to an inflexible system dictated by state statutes.

A carefully drafted, considered, and planned will can make certain that personal and family goals are furthered after death, in accordance with the testator’s desires and not according to the rules of the state intestacy laws. Additionally, in addressing those issues, a testator can achieve peace of mind.

Important Terms for a Will

Testator: The person who makes creates a will to distribute the property owned during his/her lifetime.
Beneficiary: A party to whom a gift is made or property is left to by the terms of the will.
Bequest: A gift passed by a will to a beneficiary
Estate: All the assets that a decedent owned. This includes not just real property, but everything, including personal property.
Executor: The person identified to see that the wishes of the testator are carried out.

Ten Reasons to Have a Last Will and Testament

Allows property to be transferred according to the testator’s wishes, avoiding state intestacy laws, selecting the beneficiaries and details of specific property they are to receive.
Permits a parent, instead of the government, to choose a guardian for minor children or other dependents, such as a handicapped adult child.
Can provide for differing distributions, as state law would not. A testator may wish to leave more to a handicapped child or other relative rather than to a healthy successful child. Such important distinctions can be made only if there is a will.
Enables the estate owner to name an executor to administer the estate which can minimize probate and the related expenses.
Can lower estate settlement costs, minimizing estate taxes, waiving probate fees and bonds for the executor and streamlining the disposition of estate assets, allowing a greater portion of the estate to pass to the beneficiaries.
Provisions in a will can delay distribution of a minor child's share of the estate to an age deemed appropriate by the testator and give the executor direction on when the child’s share is to be distributed.
An estate owner can be certain that bequests of money or personal property to specific individuals or charitable organizations will be carried out; A will allows the testator to leave a legacy that reflects his/her values. A charitable bequest can leave all or a portion of an estate to an organization or any other charity.
If the estate includes a business, a will can authorize the executor to operate the business until the estate is settled, with no exposure to personal liability on the executor's part.
Reduces the risk of dissension among the survivors. A clear direction from the testator can avoid family arguments over an inheritance.
Without a will, there may be an unnecessary burden on the survivors. At the testator’s death, they will have to handle the decedent’s personal affairs. Without a will, this job is much more difficult. A will is an act of consideration for those left behind.

Keeping the Will Current

Over time many life situations change. There are births, deaths, marriages, divorces. Relationships that were close grow distant. The testator may move and a will that complied with the law of the state where it was made may not comply with the law of the state where the testator resides at death. State and federal laws change as well. A periodically reviewed will can be kept them up-to-date. An out-of-date will may direct assets to inappropriate others, such as former spouses or distant relatives with whom one was once close. A periodic review of a will’s provisions can address these issues.

Additional ConsiderationsThere are elements of estate planning beyond simply having a will. A good second step is a "living trust". There are other issues as well, such as how the title to property is held and tax considerations, but putting together a will is the place to start.