You don’t NEED a will…

Yes, you read that correctly and yes, I am an attorney telling you that you don’t need a will. It’s a bit of a trick statement because whether you’ve taken the time to execute your own or not, you actually already have a will. If you’re in Indiana resident when you die, Indiana lawmakers have already decided who will get your assets after you’ve died if you haven’t put your own wishes in writing. This is called dying “intestate, as opposed to having executed a valid will, which is called dying “testate”. For most married couples, a surviving spouse will be surprised to learn that he or she is only entitled to half of the deceased spouse’s assets if that spouse dies intestate (without a validly executed will). And, depending on whether it’s a second or later marriage and whether there are children from a previous marriage, the surviving spouse could receive even less than half!

Let’s use a fictitious married couple named Charlie and Sally as an example. Let’s say Charlie predeceases Sally intestate. If this is his first marriage and he has no children from the marriage or out of wedlock, Sally will be the sole heir and receive 100% of Charlie’s probate assets when he dies. However, if they have children, most people are surprised to learn that Sally would only be entitled to 50% of Charlie’s probate assets and their children would be entitled to the other 50% divided equally among the number of them living at the time of his death. This is typically not what most married couples intend to have happen to their assets.

I have met with hundreds of married couples in their first marriage to do their estate planning in my career and I can say that 100% of the ones I’ve met with have wanted the surviving spouse to be the sole heir, and since they’ve executed their own wills, that’s what will happen. Second and later marriages are much different in that there are often children from the previous marriage who the will drafter wants to inherit something upon his/her death. But, in all of my experience and probably ninety-nine percent of other attorney’s, the plan is for the surviving spouse to be able to use and control all of the couple’s assets.

Back to our example, you might assume that Charlie and Sally’s children would give the money to Sally for her use, or that she would be in control of the money anyway, so the “technicality” of her not receiving the other half is of no harm. But, I have seen two family situations where the mother was bypassed and the adult children either didn’t have a good relationship with her, or needed (wanted?) the money so badly, they kept every penny for themselves, while mom ended up with half the assets (and most of the income) she had before her husband died. I don’t believe this is the outcome most married couples want or anticipate and it can be avoided by executing your own will and naming your spouse (or whoever you want) as your beneficiary.

So, no you don’t need a will, because the state of Indiana already has one for you. But, if you’re married, you should take the time to execute your own will so that your exact wishes can be followed and your spouse can be protected.

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