It is easy to think that you can just tell your loved ones what you want to happen to your possessions after your death, however, without a will, the laws of your state will determine how your assets are distributed. While you may have written down what you want or told a loved one, that does not guarantee that your wishes can be followed according to the law. Once you are gone, you have no say in how your belongings and accounts are distributed to your beneficiaries and your family may not be able to give input.
In most cases, your closest relatives are the ones who are named beneficiaries of your estate. This usually means your spouse, children, and parents. If you are not married or have no children, your estate then goes to your closest living relatives. These might be aunts, uncles, and cousins, people you might not even know exist.
This leads to one of the first problems that comes from not having a will:
You do not get a say in who is named a beneficiary of your estate.
You may think this is not a big deal; you have a spouse and think they will inherit everything if something should happen to you. However, depending on the type of assets, this is not the case. Your estate could be split between your spouse and parents. If you want your spouse to be your sole beneficiary, it is important to dictate that in a will.
There may also be a problem if you are separated but not divorced. It may be possible for your ex to have a claim to your estate, and without a will and possibly other important documents, your family may not be able to stop them from taking their share.
On the other side of that, you may have a long time partner, but are not married. If you die without a will, that person would not receive anything from your estate. The same may be true for any children you have out of wedlock. It is important to have those people close to you named in your estate if you want them taken care of.
If you do not have living parents, spouse, or children, your estate might pass to relatives you’ve never met. If no heirs can be found, your estate passes to the state. If you do not have family you want to leave your estate, you may have friends or charity you feel should inherit. However, they cannot do so without a will.
It will create headaches for your family
If you are a parent of minors, you can name a guardian for your children in your will that the Clerk will strongly consider in appointing a guardian. Without a will, the state will step in to appoint a guardian for them, possibly without considering what you may have wanted. You may know the person you want your children to live with if something ever happens to you, but that will not be taken into account if the court does not have a will stating as much.
If you have a holographic, or handwritten, will, it may not be clear to the executor what you wanted your beneficiaries to inherit. A “nestegg” or “some money for college” is not clear and may cause fighting among your heirs if they do not feel they got their fair share. There are also a number of other problems with handwritten wills which cause them to be subject to a lot of litigation.
The best way to avoid these headaches and pitfalls is to create a legal will with an estate planning attorney. If you need help with making a Will, you can call our experienced Durham Estate Attorneys at 919.244.2019 or reach out by filling out the contact form below.