Do I Need To Be Rich To Have a Will?
If you believe you will not benefit from having a will because you are not rich, you may be doing yourself a great disservice based on a false premise. There are many misconceptions about what wills do and who should have them. At its core, a will provides direction to a court and lets everyone know how the decedent wants to distribute their property and how their estate should be administered. Anyone can benefit from having a will and, depending on the complexity of the will, the cost of having a lawyer draft one can be very reasonable.
To be clear, not having a will is akin to making a will whereby Florida’s intestacy laws (the default law that applies when a person does not have a will) apply. By choosing not to have a will, a person is choosing to let the State of Florida decide how their assets will be distributed (depending on the asset and how it is titled). While some people believe they are not rich enough or have no assets to distribute, that may not be exactly true. Most people have automobiles, checking or saving accounts, personal property, including jewelry, family heirlooms or items with sentimental value, and many others have interests in real estate. All of these items will be distributed upon their death somehow, with or without a will.
Moreover, by failing to have a will, a person is waiving the legal right to make various selections that a will affords. For instance, failing to have a will waives the decedent’s right to choose their personal representative. The personal representative is a court appointed fiduciary who is responsible for the administration of the estate, including marshalling and managing estate assets, providing notice to heirs and creditors, and defending claims against the estate or pursuing claims against others on behalf of the estate. The difference between a good personal representative versus a bad one (for example one who steals estate assets) can be dramatic and failing to appoint such a person leaves that decision totally within the probate court’s discretion. Without naming a personal representative, family members and others may be forced to litigate who should serve in that role.
Failing to have a will also waives the decedent’s ability to provide special instructions to the personal representative or direction to the court in terms of the estate administration. These decisions could involve the payment of taxes, the handling of debts, special provisions governing unique assets (which does not necessarily need to be extremely valuable) and is limited to a person’s creativity (subject to the laws regarding what is allowable in a will, of course).
A will allows a decedent to name a guardian for their minor children (although this decision is not necessarily binding on a court). Doing so provides some guidance to the courts and others in a sensitive situation and may prevent litigation at a critical time for the decedent’s family.
In conclusion, there are many reasons to have a will that do not depend on being rich. This article was written to provide a brief, general overview of some issues to consider when deciding whether one needs a will. Ultimately, however, whether one needs a will is a decision that should be made after consultation with a licensed attorney who focuses on probate law. There are infamous cases where people have drafted their own wills with disastrous consequences, including having the will declared invalid, in part or in whole. When it comes to estate planning, beware of the old English adage not to be “penny wise and pound foolish.”
Hung V. Nguyen and Jacobeli J. Behar are attorneys with the Nguyen Law Firm in Coral Gables, Florida, which focuses on probate, trust and guardianship law.