Why You Need a Will

Many people don’t have a will because they either 1) don’t think they need one or 2) understand that they need one, but procrastinate getting one prepared.

“I don’t need a will, I don’t have an estate.” “I really don’t have anything to give anyone.” Sound familiar? Many people think that you only need “estate planning” if you have a lot of money or property. But, most people probably own some combination of the following: a house, a car, a life insurance policy, a retirement account, and/or a sentimental piece of jewelry or furniture. These are the kinds of things that make up your “estate.” A simple estate plan generally includes not only a will, to set out how you want your estate handled when you pass away, but also a healthcare power of attorney and a durable power of attorney. (I’ll save the discussion about why you need these powers of attorney for a different post).

It is important to get your will (and powers of attorney) in place now – while you are still physically, and mentally, in good health.

Here are a few reasons why everyone needs a will:

1. Without a will, the State determines how your estate is distributed. If you die without a will (if you die “intestate”), the State of South Carolina determines how your estate is distributed (this is called “Intestate Succession”). If you’re married, everything goes to your spouse; if you’re married with children, half goes to your spouse, and half to your children. Maybe this doesn’t sound so bad, maybe it’s the way you would want it to go anyway. But, what if it isn’t? And, even if it is, here are some other reasons why you still really need a will:
2. Appoint a Personal Representative. The Personal Representative is sometimes referred to as the “executor” of your estate. This is the person responsible for administering your estate after you pass away. People often nominate a family member or friend to be their Personal Representative. If you do not have a will and therefore have not appointed a Personal Representative, the Probate Court may have to appoint one for you. Court-appointed Personal Representatives may have to post a bond with the court – this can be expensive (read: it can exceed the cost of having a will prepared). A court-appointed Personal Representative may not have the authority to sell real estate or personal property valued over $5,000 without first petitioning the court (the difference being that, in your will, you spell out what powers and authority the Personal Representative has, so they may not need additional permission from the court). The bottom line: this can be more expensive and more time consuming. If you had a will, you could save on some unnecessary expenses and procedural hurdles to administering your estate.
3. Designate a guardian for your minor children. It’s hard to think about: what happens if both parents pass away while your children are still under the age of 18? Your will is the best place to designate a guardian for your minor child or children if something should happen to both parents. If one parent survives the other and has custody over the minor child or children, he or she is automatically the child’s sole guardian. But, each parent should name at least one guardian in his or her will, in case the other parent is unable to serve or if something should happen to both parents at the same time.
4. Establish a testamentary trust for your minor children. If you have minor children, you should strongly consider setting up a testamentary trust in your will. Don’t get overwhelmed – a testamentary trust for minors is not as complicated as you might think. A testamentary trust does not get funded during your lifetime, like living revocable trust. Rather, it is included in the body of the will, and it isn’t really established or funded until the death of the person creating the will/trust. Testamentary trusts are useful in the context of minor children because a child cannot inherit property in their own name until he/she is eighteen years old.  Until then, the court would have to appoint a Conservator to manage the minor’s inheritance. This process can be time consuming and more costly.