Steven C. Sasser, P.C.

Attorney and Counselor

Where there’s a Will ....[1]

            In the hustle and bustle of today’s world, it is easy to become occupied with the events of each day and fail to think about the future, especially when that future includes planning for what will happen after our death.  We often give little, if any, thought to how our property will be divided at our death, how our children will be cared for or how the family heirloom will be passed to the next generation.  Despite our desires not to want to think about our death, we should examine how our property and children will be taken care of after we are gone.  A little planning now can mean alot less trouble later.

Why Do I Need A Will?

            The reasons people give for putting off the important task of planning their estate are varied but may include an unwillingness or inability to face their own mortality or an unwillingness to decide who will get their property at their death.   The simple truth is, however, that in most cases, the failure to adequately plan for the distribution of your estate usually results in problems that could easily have been avoided with a little planning.  A well thought out and implemented estate plan can ease your mind and insure your property and loved ones are provided for after you are gone.

            The most common form of planning most people should consider is the execution of a Last Will and Testament.  With a Will, a person can direct administration of their estate and plan for the transfer of their property.  This will insure it is distributed to the people they wish to have it. In the event of a large estate, a Will, possibly combined with other documents, can avoid or reduce the often substantial burden of state and federal estate taxes.   Without a Will, a person’s property, and in some cases children, will be dealt with under a plan or scheme adopted by a state and will reflect the beliefs of the state governing body or a court rather than the individual.

            The need for a Will is particularly important for couples or individuals with minor children.  While all of us make every effort to insure our children receive the best available care  we can give them each day, the failure to plan for them in the event of our death can leave them in a legal limbo that may cause them, and their family, great stress and disappointment.  Without adequate planning, there is no assurance your children will be cared for out of your estate.  When a person dies without a Will (intestate) the state has devised a plan or scheme for the distribution of his assets.  Most states also have laws regarding who can be appointed to care for minor children.  In the vast majority of cases, these laws are not what most people want.  Under many state intestacy laws, only a portion of an estate is directed toward the children.  The other portion may be divided among other family members, including spouses, parents, grandparents and siblings.  Generally the other family members are under no obligation to insure the surviving children are cared for.  All of this can be eliminated through the use of a Will.

Most states allow a person to setup trusts for minor children in their Will.  They can designate the trustees to manage the trust and direct the use of the trust funds.  The obvious advantage of this is that you, rather than a court, can decide who will manage your child’s funds and how these funds can be used.   Trusts can also be used to insure that a special needs child will receive the care and treatment he needs.

            For couples with minor children, however, the most important reason to have a Will is to appoint a guardian for your children.  Most states, including Alabama, allow a person to appoint a guardian for their children within their Will.  In the absence of such an appointment, the guardianship of children often becomes an issue to be decided by a court.  Simply because family members agree who should take care of surviving children or you express a preference before your death does not mean that person will end up being the guardian for your children or that they will have the legal authority to act on behalf of  the children absent a court order.  A simple and easy way to avoid this expensive, and often times divisive, process is to make a Will containing the appointment.

How Do I Go About Making A Will?

            Now that you have decided you need a Will, how do you go about getting one prepared?  The first step is to decide how you want your property to be divided.  Do you want it to go equally to your children?   Do you have a child with special needs who may need to have a larger portion of your estate to insure there are adequate resources to care for him or her as long as possible? Do you want all of your estate to go to your surviving spouse?   Who do you want to be the trustee of any trusts which may be set up under your will?  Who do you want to be the guardian of your children?  All of these questions should be considered before you begin to look for an attorney to draft your Will.  It is also a good idea to discuss your plans with your prospective trustee or guardian prior to executing your Will to insure they are willing and able to serve if needed. 

            Once you have answered these questions you should begin to look for an attorney to draft the documents.  If you already have an attorney for other matters, you may want to start with him or her to see if he can draft the documents you need.  If he cannot, he will probably have an attorney he uses for referrals of this type of business.   Do not be afraid to ask for a referral.

            If you do not have a regular attorney, ask your friends or business associates for a referral. In many cases, they may have an attorney they or another family member has used for just this purpose.  If you cannot develop a contact through these channels, you can check the yellow pages listings or the internet for names of attorneys who do this type of work.  Many state bar associations also have referral services to assist you. In any event, meet with the attorney to discuss your situation and needs.  If you do not feel comfortable with him or her or the advice given, keep looking.   It is better to pay for a small amount of an attorney’s time and find that you cannot work with him than to be unhappy with the results latter.  To properly plan your estate, you must have confidence in the attorney you use.

            At this juncture I must offer a word of caution about using do-it-yourself will kits or software programs. All of these type devices are designed to be used throughout all fifty states and fail to take into account the differences in each state’s laws and the complexities of  particular situations.  Although they may appear to save money on the front end, they often lead to increased costs and trouble on the back end.  The long and short of it is you get what you pay for. 

            Although every attorney has a different way in which he or she goes about meeting with a prospective will client, all generally need the same basic information. Before going to your appointment you should gather copies of all the deeds to any real estate you own, copies of all life insurance policies you may have in effect (together with beneficiary information), a listing of the names and ages of  your children, the names and address of all persons you want to receive items under the Will, the names and addresses of those individuals you wish to appoint as trustees or guardians, and a list of any specific property you want to give and the name and address of the person to receive it.  When you make the appointment, be sure and ask the attorney what additional information he needs for your meeting.

Conclusion:

             When you look at it objectively, there is really no good reason not to have a Will.  If you have minor children it is a must, if for no other reason than to allow you to insure they are properly cared for after your death. No one wants to think about his or her mortality, but if you think about it, leaving your family without adequate planning is much worse.  The anxiety about the process is nothing compared to the problems left by inadequate planning.  Take the time now to examine your own plan and strongly consider changing it if need be.  Where there is a Will, there really is a way to care for loved ones.