Do I Really Need a Will? Absolutely, In Most Cases
Written by Jacque Mingle
Does everyone need to have a Will? Every adult should.
But if you — or someone you know — keeps putting off making one, realize what will happen at death. If you don’t have a Will, state statutes will determine where your property goes. You will die “intestate,” and the laws of “intestacy” will govern. The statutes assume what you would have wanted, depending on your situation. Your property does not go to the state – unless there are no relatives who can be found. The law essentially guesses who the recipients should be, and the guesses are reasonable.
Generally, the law in Arizona provides:
If you are married with no kids, all goes to your surviving spouse.
If you are married with kids with your surviving spouse, all goes to your surviving spouse.
If you are married with ANY children from a prior marriage or relationship, then half of your assets pass to your current spouse and half is divided among ALL children from other relationships. As you might imagine, this can get messy very quickly. A couple could be married for 50 years, and the husband could have a 53-year-old child from whom he is completely estranged. But if that husband dies without a Will, that child will be entitled to a share of the estate, no matter how unfair that seems.
If you are unmarried, all goes to your nearest relatives. First your children, then their children; if none, to parents, and if they are not living, your siblings, then your siblings’ kids, and if none, out to aunts, uncles and more remote relatives.
Nothing goes to your non-spouse significant other, no matter how long you were together, or how much you can prove your intentions
Nothing goes to charity.
Nothing goes to your friends.
If that’s OK with you, then you may be one of the few people who don’t NEED a Will.
A Will is also your chance to name the person who will administer your estate, called the Personal Representative in Arizona and also known as the “executor.” Without a Will, whoever is appointed must post a fiduciary bond (insurance that protects the estate if the PR messes up) or get all the heirs to agree to waive it. Because of this, a simple Will can make the probate process easier and more efficient.
A Will, however, does not govern certain assets. These are called “non-probate” assets because they pass automatically to the recipient without the Court or anyone else being notified. Wills usually do not determine how the following pass at your death:
Financial accounts with beneficiary designations, usually 401(k)s, IRAs, annuities, and also life insurance.
Accounts with POD (pay on death) or TOD (transfer on death) designations, which can be added to regular bank accounts.
Assets owned as Joint tenants (or community property) with right of survivorship: usually real property, jointly owned bank accounts, brokerage accounts.
Assets titled in a revocable trust.
Some of these accounts could be governed by a Will (or intestacy laws) if you fail to name a beneficiary. Sometimes the default is your “estate,” and the Will will govern, but sometimes it’s the spouse or next of kin. It depends on the rules for that specific account. Also, institutions sometimes do not have a record of a beneficiary designation you thought you submitted. Every so often, check them!
So, if ALL of your assets can be arranged to pass to your loved ones by beneficiary designation or joint ownership, you might not NEED a Will. However, realize that even if you have every asset designated in this manner, there could be unforeseen assets to worry about, such as an inheritance you have not yet collected or the proceeds of a personal injury lawsuit.
You really do NEED a Will if you:
- Are married and have children from other relationships.
- Want to exclude or reduce a share for anyone who will get something under intestacy laws (such as a long-estranged child).
- Have a minor child and want to designate a guardian.
- Want to give anything to someone who is not a blood relative.
- Want to make gifts to charity.
Even if your situation is one that does not fall into those categories, we still recommend that you have a SHOULD have a Will.
If nothing else, it signals to your loved ones that you thought about what you wanted and memorialized that decision. That can bring clarity and peace to those you leave behind.