Do you really need a will? The simple answer to that question is, wait for it: It depends. Most people own assets of some kind when they die. The assets will all transfer to someone after the owner dies. The question, then, is who gets which assets and how do they get them?
The assets might include real estate, like a home, land, or a timeshare. They can be financial accounts, like a bank, investment or retirement account. Other assets include life insurance, savings bonds, autos, boats, and personal effects or “stuff,” to include things like clothes, furniture, jewelry or tools.
Some of these assets may transfer to a surviving joint owner or owners and some may transfer to named beneficiaries. Those transfers will happen automatically, with the appropriate paperwork. Some assets, however, may not have a surviving joint owner or beneficiary. The assets in this category will not transfer automatically and must go through the probate process to determine who receives them. This is where a will comes into play. This is when having a will can save the day.
What Happens When There is a Will?
A will is a personal instruction manual for the probate process. Its primary function is to direct who gets which assets passing through probate.
It is important to understand that a will only applies to the assets passing through probate. It does not control any assets passing by joint ownership or by beneficiary designation. For example, if a will directs all life insurance to be given to a charity, but the life insurance form has a cousin named as beneficiary – the cousin gets the insurance proceeds.
A will also appoints a trusted person to be the personal representative. The PR manages the probate process, which includes collecting assets, handling the deceased person’s debts and taxes, and distributing the probate assets to the people or charities named in the will.
The will may disinherit individuals who would naturally inherit from the deceased person, such as a child, parent, or sibling. Alternatively, it may include individuals or charities who would not naturally inherit. A will may also protect vulnerable devisees, such as minor or disabled children, by naming guardians and conservators for the children.
What Happens When There is Not a Will?
If there is no will, there is no personal instruction manual. This means that Michigan law, not the deceased person, determines who will receive the probate assets and the person who is eligible to be PR. There will be no distribution to favorite charities, no excluding of undesirable relatives, or including of individuals who are unrelated. The default laws sometimes trigger family feuds because the process and results are not as well defined as with a will.
With That in Mind, Do You Need a Will?
Again, it depends on your circumstances. If all of your assets will go to a surviving joint owner or to a named beneficiary, then none of the assets you leave behind will go through probate. That means a will is not needed.
Also, if you want your probate assets to go to your spouse and children; or if you do not have a spouse or children, then to your parents; or if you do not have a spouse, children or parents, then to a sibling - and you do not care who is in charge - then a will is not necessary.
On the other hand, a will is crucial if:
You want certain assets to go to certain people;
You want to include a charity;
You do not want to treat your children equally;
You care who is in charge of the probate process; or
You want to protect a vulnerable loved one.
Norman E. “Gene” Richards is a partner at the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on estate planning and elder law. He assists clients with the development of customized estate plans to address their specific needs, including family-owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs. He may be reached at (734) 261-2400 or nrichards@cmda-law.com.