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MASSEY, HIGGINBOTHAM, VISE, AND PHILLIPS, P.A.

Why Do I Need to Make a Will?

by Mike Massey on August 31, 2012

Imagine this Scenario

Claire recently died.  When her brother Tom went through her belongings, he found her handwritten Will and various other bank statements and correspondence from her stockbroker.  It turns out that Claire, who was always sort of a penny pincher, had an estate worth several hundred thousand dollars when she died.  She never did like high-priced lawyers and wouldn’t pay one to draft her Will.  So she did it herself.  She and her husband John, who died years ago, worked much too hard for their money to “give” it away to lawyers.  Tom figured Claire must have decided she could draft her Will just as well as any lawyer could.

 In her Will, Claire left her grandfather clock to her dear niece Cindy who always admired it when she visited.  She left a $50,000 CD to her brother Tom and his wife, who looked in on her every week and took care of her when she was sick.  She made numerous bequests of her special personal belongings and furnishings to various friends from church and favorite relatives.  She even left her house to the church.  The thing is, she neglected to leave the remainder or residuary of her property to anyone.  Her husband had wisely invested their money in a portfolio of stocks, bonds and mutual funds designed to provide a steady source of income for their retirement.  John told her before he died not to sell anything.  “Just leave it alone and you’ll be fine.”  Claire never thought to bequeath her stock portfolio for some reason, or maybe she just never got around to it.  John and Claire didn’t have any children though she came from a large family herself.

Ordinarily, a surviving spouse and children would take equal shares of Claire’s residuary estate (everything not specifically bequeathed).  However, since Claire had no surviving spouse and no children, the beneficiaries of the residuary estate under the civil law are her brothers and sisters, along with her parents, all of whom share equally.  Claire’s parents died long ago.  Three of Claire’s six siblings also predeceased her but all of them had children as well thus the sons and daughters of her deceased brothers and sisters are also entitled to their deceased parent’s 1/6th share of Claire’s residuary estate.  Claire was especially fond of her niece Cindy and her brother Tom.  Her other brothers and sisters were spread all across the United States and she rarely saw them.  She’d never even met some of her nieces and nephews.  Nevertheless, all these relatives are entitled to a share of Claire’s stock portfolio and other assets which constitute her residuary estate, the value of which totals approximately $250,000.00.  Claire would roll over in her grave if she knew what was happening to her money.  She would have much preferred that her church, which was such a big part of her life, or Tom and Cindy, get a larger portion of her estate rather than those nieces and nephews who never even bothered to visit.

This scenario is not at all uncommon and the facts frequently become much more confusing.  Estates frequently pass to persons the deceased person never would have dreamed would get a portion of their hard-earned money.  Many people never get around to drafting a Will or do so carelessly, as in Claire’s case.  Listed below are several points everyone should be aware of as they consider how they wish for their estate to descend, and whether to draft a Will.

Why You Need a Will

  1. In Mississippi, absent a valid Will, your estate will pass to your spouse and children in equal shares.  For instance, if you have a wife and three children, each is entitled to 1/4 of your estate.  If you prefer that your wife or husband receive all your property, trusting him or her to properly care for the kids, the Will should specify that intention.
  2. A Will allows you to select whom you want to act as Executor of your estate rather than risking any party in interest (family member) from gaining that authority.  If you prefer that your responsible daughter, the stockbroker, be your executrix rather than your less responsible son, the musician, you can specify that intention in your Will.  You should also specify an alternate in case your first choice is unable or unwilling to do so.
  3.  If your estate must be probated but you have no Will, your executor may have to expend estate assets on a bond, for appraisals of your property, for an inventory of estate assets, and an accounting for all receipts and disbursements, all of which may use up a portion of your estate needlessly.  A Will can waive these requirements and simplify the probate process.
  4. A Will can clarify your intentions as to whom you wish to become the guardian of your children if something were to happen to you and your spouse.  For instance, what if both of you were unexpectedly killed in a car accident.  Who would care for your kids?  As with the Executor, you should also specify an alternate choice.
  5. Trusts can be established via the Will for the benefit of your children or grandchildren.  For instance, if you do not want your minor son to take all of his inheritance and blow it before he gets out of college, a trust could be established at your death which would release his inheritance in increments, such as 1/3 at age 21, 1/3 at age 25, remaining 1/3 at age 30.  Similar arrangements can provide added assurance that your children or grandchildren will be provided for in years to come.
  6. With larger estates (which is currently defined as $5,000,000) there are significant tax saving methods that can be established in your Will to minimize estate taxes such as bypass trusts.

Having a Will drafted may not the most important thing you’ll ever do, but rarely is it the wrong thing to do.  Certainly, it can be a very effective way to simplify the disposition of your estate, to minimize estate taxes, to avoid conflicts between your heirs, and provide peace of mind.  If you are scared of the cost of having a Will prepared, then ask a lawyer for an estimate before hiring him.  The cost may be a lot less than you think.  Drafting a Will may be one of the wisest investments you will ever make.

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