If you are a parent, you need a will. Even though you’re young and healthy, even though your mortality might be the farthest thing from your mind, even though right now you’d rather spend the money on something else. You need a will because at the end of the day, you’re mortal, and when you shuffle off this mortal coil, having a will can save your family considerable time, money and grief.
What is a will and why do you need one?
Basically, a will is a legal document that sets forth your final wishes for your estate and care of any minor children. According to Sarah Jane Delano Pavlik of Delano Law Offices, LLP, “A will can do many things, but primarily it provides for the disposition of a person’s assets, designates a guardian for minor children and appoints an executor to administer the estate.”
That means that a will is your chance to decide who will inherit everything from your monetary assets to your personal property. It is also the most important thing you can do to ensure that your minor children will be cared for by the person of your choice in the case of your untimely death.
If you die without a will, “the state of Illinois has a form of a will for you, and you may not like the way the state decides your estate should be administered,” cautions James Lestikow, a partner at the law firm of Hinshaw & Culbertson.
Inheritance of assets and personal property
If someone dies without a will, Illinois statute stipulates that half their estate goes to the spouse, and the other half is divided equally among any children.
While this arrangement sounds benign, it can lead to a host of problems for the family. The surviving spouse may have been counting on the estate to provide support for the remainder of his life, only to find life made difficult by the fact that half of the estate now belongs to the children. The children’s assets will be managed by a guardian appointed by the court until they reach the age of 18, which can be expensive and time-consuming. When the child does come into control of his assets, there is no guarantee that he or she will be mature enough to handle them in a responsible manner. Finally, the disposition of personal property can lead to bitter arguments over who should get which cherished memento of the deceased.
“I have seen many cases where a person did not have a will, and the outcome was a disaster,” Pavlik observed. “I have seen people coming out of nowhere claiming to be children of the deceased person. I have seen terrible fights among siblings.”
David Reid of Reid Law Office, LLC, also warns that parents of blended families have an extra reason to draft a will. In Illinois, without a will, “a stepchild will not inherit the decedent’s assets. Rather, only the surviving spouse and descendants (child or children) will inherit the assets.” This means that, regardless of how close or loving the relationship might have been between a stepparent and stepchild, the stepchild is not entitled to any inheritance whatsoever.
Guardianship of children
If both parents were to die without a will and leave minor children, the court will appoint a guardian to care for the children. Although the court strives to act in the best interest of the child, the process of choosing a guardian can be very contentious within a family.
Pavlik urges parents to consider the worst case scenario of dying without a will. “Do you have a brother with a drug or gambling problem? What if he became guardian of your children? Would both grandmothers fight over guardianship, resulting in bad relations? Most of these situations can be avoided with proper estate planning documents,” she said.
What does a will cost?
Although costs vary by law firm, a set of wills for a married couple will generally cost in the neighborhood of $500-$900. According to Reid, couples are advised not to have joint wills. “Parents should have individual wills. It is a better practice. Joint wills raise many legal issues and should be avoided.”
Lestikow also strongly encourages people to see an attorney to draft a will rather than trying to do it themselves using Internet resources. Although using a legal website may save money in the short run, Lestikow has seen too many cases in which an Internet will resulted in important detail being overlooked that rendered the will invalid. “There may be some things that people can do effectively without lawyers, but it is not, in my experience, true about a will,” he said.
All three attorneys caution that the beneficiary designation on assets such as insurance policies or IRAs trump the will, so it is extremely important to review these designations and update them as necessary.
Bottom line: you need a will
Ultimately, drafting a will now may seem like a daunting expense, but it is guaranteed to save your loved ones headache and heartache after your passing.
“Parents owe it to their children to prepare a will,” emphasizes Reid. “The lack of a will leaves an emotional and financial mess for the children to pick up. Prepare a will, today. You can change it tomorrow if you wish to do so, but do it today.”
Erika Holst is the married mother of a son and stepson. Writing this article has motivated her to finally get around to having a will drafted.
This article appears in Capital City Parent February 2016.
