Because you own your property, you can do with it what you will at your death. Nobody has the right to claim your property because he believes that he has some claim to it or â€œdeservesâ€ it. A will is simply the legal way that you exercise this right.
If you do not make your own plans, you die â€œintestate.â€ The state will then take charge of distributing your property through laws that govern â€œintestate successionâ€ or â€œdescent and distribution.â€
As you might expect, these laws direct that, since you do not have a will, your estate will be distributed equally among your closest relatives. This sounds fair and may reflect your own wishes, but the state is blind to circumstances that are obvious to you. For instance, if you have three children but one has special needs, you might wish not only to give a larger portion of your estate to that child but also to place it into a trust. However, if you donâ€™t have a will, the state will notâ€”cannotâ€”do this. To ensure your property is distributed as you wish, write your plans into your will.
Make sure, however, that you treat any will you write as your last will. You may intend to do an â€œinterimâ€ will now, quickly, because youâ€™re about to leave on a vacation and you plan to revise it on your returnâ€”but events intervene, and all too often that â€œinterimâ€ will becomes the final will.
Your will should reflect two different plans for the distribution of your estate. The first plan should reflect what would happen with your estate should you die a day after signing the will; the second plan should cover changes in circumstances that occur between the date of your will and your death.
In particular, your will should cover the possibility that one or more of the beneficiaries you name in your will may die before you do, or that you may have disposed of property you specifically mentioned in your will.
For instance, however difficult it may be to imagine, children do sometimes die before their parents. Would you want that childâ€™s share of your estate to pass to his or her children; to that childâ€™s spouse, in whole or part; or to be divided among the surviving children?
To give another example: Itâ€™s common for married couples to leave all of their estate to each other and then to their children. However, if the wife survives not only her husband but all of their children, the entire estate will then be left only to her heirs, and none to his. For this example one option would be for a disaster clause to name charities or specific relatives from both families as beneficiaries. And at the least, your wills should provide that if all of your children and grandchildren predecease you, then half of the estate will be distributed among each spouseâ€™s heirs. This way, order of death will not determine which spouseâ€™s heirs will inherit your estate.
Creating a will need not be complex. For instance, there are software packages like Quicken Willmaker that can guide you and your spouse or partner through the process of creating a basic will. To double-check your will, especially if your needs are more complex, you should consult with an attorney.