Dying without a will No. 3 – is a will even needed?
- Providing reasons why you might want to make a will even if your chosen beneficiaries match those your estate would go to anyway even if you don’t have a will.
This is the last of a three-part series about dying without a will.
In the first, I provide a hierarchy of folks who will inherit your estate by default if you don’t express your wishes in a will.
In the second, I explain how barren a family tree would have to be for your estate to go to the government.
I will now answer a question I posed at the end of the first: If my wishes fit perfectly with who inherits my estate by default if I die without a will, should I bother making a will?
Here are two common circumstances this might occur:
- You wish for everything to go to your spouse. And you have no children. If you die without a will, your spouse will inherit your estate even if you have no will.
- You wish for everything to go to your children. And you have no spouse. If you die without a will, your children will inherit your estate even if you have no will.
The legal process of obtaining an estate grant (commonly referred to as probate) is almost identical with or without a will. You’re not making that aspect of things more difficult nor more expensive by not having a will.
So why, in those circumstances, should you make a will?
One reason is that your circumstances might change.
One of the most important aspects of will-making is to look into the future to identify changes in circumstances (contingencies) that would change your wishes. And to draft the will to accommodate those contingencies.
An obvious contingency in the “spouse and no children” scenario is your spouse dying before you do. With no spouse, your default beneficiary might be some distant relative. If you make a will, you can choose who inherits your estate if it turns out that your spouse predeceases you.
A “wait and see” approach, choosing to wait and see whether your spouse dies before you, is not a wise one. By that time, you might no longer have the capacity to make a will.
Considering and planning for contingencies is also important in the other scenario (children and no spouse).
It’s important in any scenario. The future is uncertain. But with a will, you can plan for all reasonably foreseeable contingencies.
Another reason for a will, even if default beneficiaries currently match your wishes, is to include terms that will assist in an anxiety free and fair administration of your estate.
For many people, it’s important that their family not spend a bunch of money on a funeral or the disposal of their body. And that disputes about how their ashes are dealt with are avoided. Including a simple clause in a will can go a long way to easing anxieties about these matters after you’re gone.
The matter of who will act as executor and the executor fee can each become significant points of dispute if those issues are not addressed. I recommend sorting those issues out in advance and including the appropriate terms in your will.
A will can be particularly important if there are minor beneficiaries, whether they’re your own children or your grandchildren. You will want to appoint a guardian for your own children. And you will likely prefer to appoint a trustee to manage a young person’s inheritance rather than having it handled by the office of the Public Guardian & Trustee. With a will, you can also delay full access to an inheritance beyond the age of 19.
You might want to give some financial help to one of your default beneficiaries while you’re alive, and for that help to be taken into account when your estate is distributed. I recommend a clearly drafted clause in your will to address this issue. Even small customizations like this can prevent family friction.
I could go on and on.
But with all of that, there have been some people who have consulted with me about estate planning who I’ve advised against incurring the cost of a will. For them, the defaults under the law were perfectly suitable and contingencies were too remote to seriously consider.
My key recommendation is that you have an estate planning consultation with a lawyer who can provide advice based on your particular circumstances. That won’t be me, as I’m not currently taking on new estate planning clients, preferring to focus on the estate administration (probate) side of my practice.
