Making a will: Leave nothing to chance

January 5, 2007

To avoid heartache for the very people you're trying to protect, here's what you need to know before you sit down with an attorney.

If you're like most people, you find the prospect of writing a will unsettling. Even doctors don't want to think about their own mortality. But neglect this necessary task and your family could suffer as a result.

You can't assume, for instance, that everything would automatically go to your spouse if you haven't drawn up a will. In fact, state law would direct the distribution of your assets, and there's no guarantee that it would mirror your wishes. "In Pennsylvania, for example, if someone dies without a will, the surviving spouse in a childless marriage gets $30,000 but has to share half the remaining assets with the surviving parents," notes tax attorney David J. Schiller of Norristown, PA. In some states, like New York, half the estate would go to the spouse and the other half to the children. If the children are minors, their share can't be spent without application to the court.

If you do have a will, does your spouse have one, too? You both need one. Have you had any children since your will was last updated? If you haven't named them, your state may not automatically include them under your will. Are you still comfortable with the person you named as guardian for your minor children? Relationships and circumstances change, and your will may need to be revised.

What a will does-and doesn't-accomplish

One thing a will can't do is enable your heirs to avoid probate. Probate is the legal term for the process whereby the executor gathers your assets; pays your debts, taxes, and the expenses of administering the will; and then distributes the proceeds to the beneficiaries. Probate can be time-consuming, so assets that avoid probate will be available to beneficiaries more quickly.

Certain assets can avoid probate, but they need to be excluded from your will. One type of asset that should be excluded is jointly owned property-such as savings accounts, stock certificates, and real estate-which pass to the surviving owner. You should also exclude your 401(k), IRA, life insurance, and pension. They will pass outside the will if you've named beneficiaries for each of these assets. Be careful not to name your estate as the beneficiary. If you do, the asset will not only become subject to probate, but also to the claims of creditors.

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