The Importance of a Will

In 2017 AARP published an article on a study that found that sixty percent of adult Americans do not have a will.  What this statistic implies from state to state varies in the detail.  However, on a general level we can state what it means in Pennsylvania.

First, not having a will does not mean that your estate will not have to go through probate.  In fact, whether you have a will or not, if you own assets that are not jointly owned (such as a home owned by the entireties or a jointly owned bank account) or you own assets that do not have a beneficiary designation (most IRAs and insurance policies are examples of assets that have a beneficiary designation), you very likely have a “probate asset” that is going to require one (or more) of your loved ones to visit the Register of Wills.  You will not be able to skip the step of “raising an estate” simply because there is no will.

Second, you will not be able to direct who administers your estate.  A decedent who dies with a Will names an “executor” to administer the estate in his or her will; thus, the decedent has some ability to ensure that a responsible and conscientious person act as the executor.  Likewise, administering the estate can be a significant headache. Appointing an executor in a Will can be a way of not imposing that inconvenience on a party, such as a surviving spouse, at a time when that person is least emotionally equipped to handle it. 

If there is no will, the decedent cannot appoint an executor.  The task of appointing an administrator to handle the estate then falls, in primary part, on the Register of Wills. Generally, if there is no will the Register of Wills will look first to the surviving spouse to be the administrator, then to individuals who would take the estate under the law of “intestacy”  (the law that governs distribution of an estate when there is no will), then to “principal creditors” of the decedent, and then, finally, to the catch all “other fit persons.”  Clearly then, if there is a surviving spouse, he or she would very likely become the administrator of the estate, unless he or she “renounces” and the family provide the Register with a suitable substitute.  Unfortunately, the family with the help of the Register of Wills, might ultimately settle on a person that the decedent would not have chosen (which is a polite way of saying that, left to its own devices, the family may acquiesce in allowing the pushiest relative to be the administrator—this is not necessarily good or what the decedent would have wanted).   

Third, once the administrator is appointed, how do the assets get distributed?  If there is no will, this process is also determined by the terms of the law of intestacy.  The first person who would be assured a percentage of the estate would be a surviving spouse.  For example, if there is a surviving spouse, and the decedent had neither parents nor “issue” (i.e., children, grandchildren, etc.) then the surviving spouse would get the entire estate—in many cases an acceptable result.  In a slightly more complicated but normal scenario, if there are surviving issue of the decedent and his spouse who are children of the marriage, then the first $30,000 along with one-half of the balance of the estate goes to the surviving spouse—the rest goes to the “issue”.  Now we can see examples of how things might go wrong.  What if the “issue” happens to be a nineteen-year-old grand-child (i.e., too old to have a guardian appointed, but potentially too young to handle a large amount of property)?  What if the grandchild had received a great deal of property during the decedent’s life and the decedent wanted to give his estate away in small gifts to a number of individuals?  What if the decedent simply did not like the grand-child or any other beneficiary that the Intestacy law determines to be an heir entitled to a portion of the estate?  Reliance on the intestacy laws can easily result in an unsatisfactory disposition of the Estate.  Keeping a current Will avoids this.  

And, finally, money isn’t everything. For parents with young and adolescent children; it is not the most important thing.  If both parents pass and there is no will, the question of who takes care of the children, physically and financially, is left to the Orphan’s Court.  Sometimes the Court does a good job; other times it may not.  However, with a will, the parents make the decision. Despite the importance of this, many individuals with minor children apparently do not have wills; presumably because estate planning is not on the minds of younger generations.  According to the findings published by AARP, 78% of millennials (ages 18-36) and 64% of Generation Xers (ages 37-52) do not have a will. 

Overall, in the absence of a will Pennsylvania law is designed to distribute an estate and provide for the protection of minor children in a manner that the majority of Pennsylvania’s legislators thought that the majority of citizens would have considered appropriate at the time that the Legislature made those laws.  Even under ideal circumstances, that does not necessarily mean the Legislator had your individual needs and situation in mind.  For most people the cost of obtaining a Will is nominal.  Given the peace of mind that it confers; we suggest that it is worth it.


Posted in Estates / Wills, Newsletters