If you’re a lawyer, you know a lawyer, or you just watch lawyers on TV, you’re familiar with a lawyer’s favorite phrase: “It depends.”  Truly, nearly every legal question depends on a host of facts and circumstances that make it impossible to guarantee a particular outcome … except in the case of my favorite question: “Do I need a will?”

After several years of observing the expensive and protracted litigation that can blossom from intestate estates, I’ve compiled my top five list of reasons why my answer is always, “Yes, you need a last will and testament” (with one reason why you might not).

1. You have a spouse and children.

If you are married with children, the intestacy laws divide your assets between your surviving spouse and each of your lawful children.  In theory, this division seems ideal.  However, there are three primary instances in which not having a properly-drafted will may result in complex, acrimonious litigation:

- Minor and developmentally delayed heirs: Minors and individuals with special needs cannot legally contract or represent themselves in court; therefore, they cannot agree to the disposal or distribution of estate assets. When a minor or special needs individual inherits assets outright, the court typically appoints a neutral attorney to represent that person’s best interests, and may also require the opening of a guardianship for the minor child, which enables the court to monitor the use of the child’s inherited assets until the child is lawfully able to assume ownership.

- Strained relationship between surviving spouse and children: Under intestate law, the surviving spouse and children are fundamentally at odds, as the existence of one reduces the share received by the others. Regardless of whether the children are the lawful children of the surviving spouse or of a different partner, any existing animosity can complicate estate administration.

- Extramarital or "outside" children: As the definition of "family" evolves, more children are being born outside of marriage. Under the intestacy laws, any child who is determined by the law to be your lawful heir will inherit with your other children, regardless of whether the child was born inside or outside marriage. 

2. You don't like your next of kin.

This statement might be a bit hyperbolic, but the underlying point holds true: If, for whatever reason, you do not want your lawful next-of-kin to inherit your assets, you will need to execute a will. Keep in mind that as you gain relatives through new births or lose relatives through death, your next-of-kin may change several times before you die.

3. You want to make specific gifts.

Under the intestacy laws, your next-of-kin inherit from you in percentages based on their degree of relationship to you and the number of relatives also at that degree. This property division rule applies to all of your assets, including your real estate. Outside of designating a beneficiary or joint owner of your assets, executing a will is the only way to bypass this equitable division of your assets and earmark items for specific individuals.

4. You want to leave specific post-death instructions.

A will is a great tool for leaving certain post-death instructions, such as the payment of a mortgage, funeral expenses or other debts; the sale of real and personal property; and how, when, and even under what circumstances an asset shall be distributed. Your executor is obligated to comply with the terms in your will (unless doing so is illegal, impossible or impracticable), making your will one of the last means through which you can retain control of your estate after you’ve died.

5. You've established a living trust.

If you have a living trust, you need a will, specifically, a “pour-over” will.  This type of will ensures that any of your assets not titled in the name of the trust at the time of your death are transferred (i.e., “poured over”) into the trust, ensuring that your non-trust assets avoid the intestacy laws.

And the one reason you might not need a will…

All of your assets have joint ownership or beneficiary designations: The only way to circumvent the intestacy laws without executing a will is by formally designating your joint or subsequent owners. Real property can be left to another person through a joint ownership deed, which immediately establishes that person as the co-owner of the property. Other assets, such as bank accounts, retirement plans and insurance policies, can be left to your person of choice by designating that person as your beneficiary.

Both of these means of transfer supersede the intestacy laws. However, if your joint owner or beneficiary predeceases you and you fail to properly change the designation before you die, these assets will be subject to the intestacy laws. There are also gift and tax implications to consider.

A last will and testament is a pretty powerful little document, as it is one of the few tools that allows you to maintain control over your estate even after you’ve died. A simple will is fairly inexpensive to obtain, and can be as basic or as detailed as you’d prefer. To ensure that all appropriate contingencies are accounted for, it’s a good idea to employ an experienced estate planning attorney who knows the necessary language to include in your will to accommodate your particular circumstances. In April’s article, I will discuss one of the two complementary documents to a last will and testament – the general durable health care power of attorney.

These articles are purely informational and do not constitute legal advice.  As with all legal issues, please consult an attorney when determining your estate planning needs.