Do I Really Need a Will?

Though I was never a Boy Scout, I’ve always admired their brilliant, succinct motto: “Be Prepared.”  It’s good advice whether you’re going camping, getting ready for a ballgame, or laboring on a presentation for work.  Yet while we frequently prepare for such short-term activities, we often forget to plan for issues that are more distant.  One such event is the end of life.

A 2010 survey by found that less than half of all adult Americans had executed any of the basic estate planning documents.  There are a number of reasons for such inaction.  Some perhaps think that estate documents are only necessary for people of wealth.  Some think that they simply can’t afford to have such documents prepared.  Some fully intend to execute estate documents, but assume they have plenty of time left to do so.  My answers to these concerns are, respectively: wrong, wrong, and you’d better hope you’re right.

In truth, every adult should be prepared for catastrophe.  While death is certainly not an enjoyable thought, it’s certain nonetheless, and only by acting now can you be sure that your wishes are taken care of after you’re gone.  Consequently, everyone should execute a Will.

In simple terms, when a person dies, the courts must decide what happens to the things owned by that person.  You may own some things in such a way that they automatically pass to your spouse (such as real estate), but otherwise a person’s assets go into that person’s estate when he dies.  A Last Will and Testament is a legal document that says what happens to the assets in that estate after your death.

Without a Will, a person’s estate passes through intestate succession.  This method is the default way that a deceased person’s property is passed on, but it is often not in accordance with our wishes.  For example, if a husband and wife have two children and the husband dies without a Will, the husband’s estate will be split evenly between the wife and the children, with the wife receiving half of the husband’s estate and the children each receiving a quarter share.  Because the law puts restrictions on how assets belonging to children must be protected, such an arrangement might make matters quite difficult for a single mother.  Multiple other examples speak to the importance of estate planning.

While it’s a good idea to have a lawyer prepare a Will (and this can be done fairly inexpensively), it is not required that a lawyer be involved.  Any person can prepare a Will, which will be valid as long as the Will (1) is in writing, (2) is signed by the testator (the person making the will), (3) that person is at least 18 years old and is of sound mind, and (4) the will is signed by two persons who witnessed the testator sign (these witnesses should be people who do not stand to receive anything under the terms of the Will).

When preparing a Will, there are important things to remember.  First, the Will is not filed with the Probate Court until after a person’s death.  When the document is filed, only the original document will do.  Consequently, you should keep the document in an important place and let others know where it is.  If the document cannot be found, it is presumed that you destroyed it, intending to revoke it.  Second, you should prepare for contingencies.  Specifically, consider what might happen if one of the people you have named as a beneficiary dies before you.  You should allow for how your property might pass in this situation.  Finally, once your will is complete, do not make changes to the will itself.  Any changes should be done by separate codicil and must be executed with the same formal requirements as the original Will.

In addition to executing a Last Will and Testament, it is also a good idea to prepare a Healthcare Power of Attorney or Living Will.  These documents allow you to specify how you would like your healthcare handled in the event that you become incapacitated.  It is in this document that you may specify whether, and under what circumstances, you want life-sustaining procedures such as tube-feeding to be employed to prolong your life.  You may also designate an agent to make such decisions on your behalf.  Again, it is a good idea to consult with an attorney to prepare such documents, but you may also draft them on your own.  The South Carolina Lieutenant Governor’s Office on Aging offers template documents on its website.

Before the week is out, you will have taken the time to prepare for a number of seemingly insignificant activities.  Take the time to prepare for one of life’s certainties and ensure that your wishes are given effect.