Do I need a will?

FOR most of us, busy driving the kids (or grand-kids) to school, going to work, and trying to pay the bills, the last thing on our minds is our mortality. Perhaps that’s why more than 64% of Americans don’t have a will. It’s also partially because most people don’t like to think about death,” according to 2015 Rocket Lawyer survey.

Even the rich and famous die without a Will. For example, the following all died “intestate” (dying without a Will): Abraham Lincoln, Martin Luther King, Jr., Jimi Hendrix, Howard Hughes, Bob Marley, Kurt Cobain, Tupac Shakur, Sonny Bono, Barry White, James Brown, Steve McNair, Nate Dogg, Amy Winehouse, Prince, and Whitney Houston.

    The one big lesson that can be learned from these intestate celebrity estates is that without a Will, the surviving families are left with a big old mess to clean up in probate court. And in many cases, these messes can take years to be sorted out after tens of thousands of dollars are spent in attorneys’ fees.

 A Google Consumer Survey (June 2016) revealed that most people do not understand why they need a Will. What most people fail to understand is that writing a Will is really not about you at all. It is about helping your loved ones, i.e., not putting them through the legal and administrative turmoil that comes with dying intestate.

Perhaps, like many people, you think “I don’t have any assets, so I don’t need a Will.” You are not writing a Will to come into effect today, your Will is more likely to sit in a drawer for many years. You have absolutely no way of predicting the size of your estate when you die, and in fact, you can be worth much more after you have died than you ever were alive.

Supposing your death was an accident, and somebody was held responsible. There is a good chance that there would be some level of accidental death compensation and that compensation would go to your estate. Suddenly, the State (not you) determines who gets the millions of dollars from the settlement.

    This is one of the reasons why you never attempt to list your assets in your Will. You don’t know when your Will is going to come into effect, and you have no idea what assets will be in your estate when you die. But, everybody needs a Will, even if you do not have a penny to your name today.

Or, you might have assets and plan to write your Will just before you die. Not a good idea. The obvious downside is that we really don’t know when we are going to die. Or you plan to wait until you are close to death, i.e., very old and/or sick. But by then, you probably won’t have mental capacity to write your Will.

Or, you might be putting off writing your Will because you are waiting for some future event to happen before you make a Will, e.g., “I’m expecting a child next year.”  The problem with that strategy is that your life will never reach a point of “no change”. Throughout your life you could have changes in marital status, you may have children, and you may have grandchildren.

The answer is that you should write your Will today, and update it whenever there is a change of circumstance. To write a valid Will, you must have mental capacity. So waiting until you are very old, or diagnosed with a terminal illness is not the best time. Your Will should be written while you are young and healthy and then updated throughout your life as your circumstances change.

“But Judd, I was told that a simple Will has to probated, is that true?” Yes. Contrary to popular belief, having a Will does not avoid probate. A Last Will and Testament is used in probate court to determine who receives what property, who is appointed as guardian to any minor children, and who will be responsible for carrying out the last will’s requirements.

You want to avoid probate!!! Probate is a legal nightmare!!!!  The reality of dealing with the courts can be stressful, complicated, and confusing. Dealing with probate can be full of headaches and cost your heirs tens of thousands in probate fees. Probate can take anywhere from approximately eight months to several years to complete.

In most cases, a Revocable Living Trust is going to be the best way to avoid probate and to distribute your estate to your loved ones the way you intended. There is really no disadvantage for you to set up a Revocable Living Trust because you appoint yourself the “Trustee” of your Trust, i.e., you remain in complete control of your property.

The Living Trust is a legal document, just like a Will, that allows you to give instructions on who receives your estate when you pass away. In other words, a Trust has “Will Power, but avoids the high costs of probate.” Remember, the law allows you to avoid probate – take advantage of it.

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Judd Matsunaga, Esq. is the founding attorney of Elder Law Services of California and practices Medi-Cal Planning, Estate Planning, Probate, and Trust Administration. Judd can be contacted at (310) 348-2995 or [email protected]. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Asian Journal. The information presented does not constitute legal advice and should not be treated as such.