Wednesday, November 28, 2012

Who Should Really Make a Will? (You might be surprised)

Who Should Really Make a Will?

The answer to this question starts with a question.....

"Who would inherit from you if you did not make a Will?"

When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "distributees" or people who are "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If  it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.

I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?"  The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?

Think this never happens?


I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".

I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....

Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the inheritance aspect is not so different than if they do.

People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals.  Business-wise, I don't mind this all that much, these end up being my largest fee cases, sure is puzzling.

Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation.  Not only is there is no easy answer, but every situation is unique.

I will say this.....if the person has talked about it, and you think they WANT to do it, HELP THEM get it done. But, as we say in poker, don't overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should make a Will doesn't.

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