Last Will and Testament? I place the question mark at the end of this because it asks the question, “Do you have a Last Will and Testament?”
Very often the answer to this question is “I do not.” Sometimes I think the best gift a person could give his loved ones (after death), is an organized estate. Certainly, that is true for the person who will need to settle the estate. Most people should have a Last Will and Testament; but if even if they do not, they should make a thorough review of their property and affairs to see how beneficiaries are named and property is titled and held, even for very modest estates, especially if they have children.
Fight the law of unintended consequences. Failing to plan means planning to fail. It seems as if everywhere I read that you should not die without a will. For example, estate planning lawyer and columnist, John J. Scroggin, AEP, J.D., L.L.M. in the Wall Street Journal says, “Unfortunately, numerous studies show that over 50% of Americans have no estate plan, no will and no medical directives.” 1 This is a sobering statistic and is a headache creator for the unfortunate heirs who inherit a mess to clean up, with relatives fighting over what assets remain and sometimes outright stealing from each other, and fraught with indecision about what to do when their parent or elder becomes ill and incapacitated..
I have seen relatives and neighbors swoop down on a deceased persons assets and “clean out a house,” in a few hours. Then I have seen the problem of the drug dependent child inhabiting the house after Mom died, who refused to leave the house until it was foreclosed upon, destroying any equity for her siblings.
There are numerous scenarios in which heirs wish a foresighted decedent had done at least elemental planning. John J. Scroggins’ article goes on to cite an extreme example, which in my view is not so extreme. He writes, “Assume a childless couple without wills is in a car accident that immediately kills one of them, which the other survives for a short time. In most cases, the second-to-die spouse’s family will inherit 100% of their common estate (including any wrongful death claim), while the first-to-die spouse’s family gets nothing.” 2 Shocking, right?
Here’s another bad example, perhaps worse. A married couple with children, are in a car accident and both are killed. Without a will, the children’s creepy Uncle, or their Uncle or Aunt with a gambling or alcohol problem, steps up and assumes custody of the children and their assets in a court proceeding, since no one is around to object. The parents did not take the time to put their assets in a trust and designate who should be guardians of their children, to the children’s ill fortune.
Another thing, while having a will is better than not having a will, it is important to get professional advice before drawing one up. Legal document preparation services are making inroads in Do It Yourself legal documents, but I have seen legal document preparation services documents drawn up by amateurs, riddled with errors and problems both in language, bad choices and flawed execution, when a trip to a competent lawyer for a very modest price, not much more than what legal document preparation services charged, would have yielded a much superior result.
Why have a poorly drafted and executed legal document when a professionally drawn one is not much more expensive and better for your peace of mind? In directing and determining the outcome of all of your property and its impact on your child and relatives, scrimp on the cost and quality at your peril! Seek out a qualified estate planning attorney instead.
Jeffrey A Fleischhauer, Attorney at Law practices in the areas of Estate Planning and Elder Law in the greater Roanoke, Virginia area. The intent of this article is to provide information of a general nature and should not be construed as legal advice. For more information and a free one-hour consultation, please call Shenandoah Legal Group, PC at 540-344-4490 or on the web at www.shenlegal.com.
1 Scroggin, John J., AEP, J.D., L.L.M., Estate Planning – It’s All About Your Legacy, Wall St. J. Online, March 2013 p. 1 found at (http://online.wsj.com/ad/article/financialstrategies-estate)
2 Scroggin, John J., AEP, J.D., L.L.M., Estate Planning, p 1.