Let Them Fight

Written by Teresa D. Lancaster

Posted on Jul 21, 2010

Over the years many of us have made the remark “they can fight over it when I’m gone”. However, what you have left your children with is what you have strove to provide them all along—guidance. Even if you do not have children, you leave your family with no instructions as to what your wishes were.

Often, we do not want to think about the “D” word, and making a Will means we have to think about it. However, thinking about it can help your family pick up the pieces once you are gone.

Here are some of the benefits to having a Will:

Probate
A Will makes it more likely that your beneficiaries will be able to proceed informally with a probate. This  means no one will have to appear in court and less paperwork will be needed. Without a Will, the process is more likely to require a formal proceeding, which requires a court appearance, additional paperwork and additional time to determine your heirs. Typically it is a more costly process that is more time consuming and which may require more family agreement.

Beneficiaries
Without a Will, your assets will be distributed to your “heirs at law”, who are determined according to the law in the State in which you are domiciled. In Arizona, if you are married, your assets pass to your spouse…unless you have children with a different person, in which case the law divides up assets between the spouse and children.  If you are not married and have children, they will be the beneficiaries. If no children, then your parents. If no parents, then your siblings. The list extends from that point and if no heirs are found, your money will ultimately go to the State of Arizona. With a Will, you can make specific distributions to family, friends, a charity, or anyone else you may want to benefit.

Controlling the Distributions
A Will also allows you to make special provisions for your beneficiaries. For instance, if you have a family member who receives state benefits, a Will could provide that any funds left for them would be left in a Special Needs Trust. This type of Trust would prevent the beneficiary from losing their public benefits. Should that person inherit funds directly, it may cause them to lose benefits for a period of time. This is just one of many techniques that an estate planning attorney can utilize when drafting a Will.

Additional Documents
A Will is not the only document you should have in your estate planning arsenal. It is also important that you have a plan in place if you become incapacitated. A Financial Power of Attorney allows you to nominate someone to make financial decisions for you and a Health Care Power of Attorney allows someone to make health care decisions for you. Without these documents your loved ones may be left with no choice but to petition the court for this type of control. Again, that is a costly venture which is also emotionally difficult.

The most important thing any of us can do is make a plan so that we never leave our family members guessing. Loss is difficult in itself and having a clearly laid out plan is always best. An estate planning attorney can help you make the best plan for you and help avoid the fight.