Pros and Cons of Wills

By: Nnamdi Nwaneri (03/2022)

Last Will Advantages

I. You Decide Asset Distribution

A Last Will determines who receive assets from your estate. Without a Last Will, your estate is subject to the law of intestacy in the state where which the person passes away. Intestacy laws may or may not be favorable to the individuals or institutions the deceased person intended to leave their assets with. If you are not married but have a long-term partner, he or she could receive nothing under such intestacy laws. Alternately, if you are in the process of a divorce but it has not been finalized, without a Last Will, your estranged husband or wife could make a claim on your estate.

II. Testamentary Trust Creation

A testamentary trust is a trust within a Last Will created upon the persons passing and used to hold property for another person’s benefit. The trust provides for the distribution of all or part of an estate and often proceeds from a life insurance policy held on the person establishing the trust.

III. Selection of Executor

The executor of a Last Will is in charge of making sure all your bequests are carried out. A Last Will gives you complete control over deciding who this person or entity will be. The executor should be someone who is willing and able to handle everything that is involved with the closing of your estate. Without a Last Will, a court appoints someone to administer your estate, and that person may not be someone you would like to choose.

IV. Planning for Personal Matters

A Last Will may contain specific instructions and directions intended for the deceased individual’s estate. From burial arrangements to pet care, you can use a Last Will to dictate what type of services, if any, you would like, and other personal matters.

V. Amending and Revocation

Personal circumstances change daily so flexibility in changing a Last Will is necessary. Through a “codicil,” you can amend any provisions of your Last Will at any time so that they better reflect your most current wishes and assets. Additionally, if you find that a Last Will no longer represents your interests, you can revoke it entirely and start over.

Last Will Disadvantages

I. Probate

Probate is the legal process for the orderly distribution of assets and payment of debts when you pass away. During this legal proceeding, a court will attempt to identify a Last Will to start the process of distributing your estate to the proper heirs. This can be a long process, which can, in turn, be costly for the estate.

II. Public Record

A Last Will becomes public record once it is filed for probate, which means anyone can search for it and view its contents.

III. Tax Concerns

A Last Will that is not carefully planned out could leave your estate open to paying large state and/or federal estate taxes or cause your beneficiaries to pay inheritance taxes.

IV. Possible Challenges

Someone could challenge your Last Will despite you following all of the proper procedures in its creation. All challenges must be filed with the court in the state where which the persons estate is probated.

Conclusion

Laws regarding Last Wills differ by state thus an understanding of the requirements for drafting and executing a valid Last Will in your state is critical. All of the disadvantages listed above can be nullified with proper Last Will planning and/or other estate planning documents. Do not allow the potential pitfalls discourage you from having your final wishes granted when you pass.