Why Write a Will?
In each state, Intestate Succession Laws govern the disposition of the estates of persons who have not written a will. Although state laws vary, all Statutory Wills are similar. If you have been thinking about a will and talking about a will, but have not taken time to write one, read the Last Will and Testament of John Doe. It was written with a little editorial license, but is essentially the Statutory Will in the state of Illinois, where I practice.
Last Will and Testament of John Doe
(As written for him by the State of Illinois)
I, JOHN DOE, of Anytown, Illinois, believing the State Legislature knows better than I do what should be done with my estate when I die and being too busy earning the money that will be my estate, hereby make, publish and declare that the will drafted for me by the politicians in the state legislature shall be my Statutory Last Will and Testament as follows:
I give my wife, JANE DOE, one-half of my assets that I own in my own name, I give my children the other one-half.
I appoint my wife as guardian of our children, but as a safeguard I require that she report to the Probate Court each year and make an accounting of how, why and where she spent the money necessary for the proper care of our children.
Because I don’t trust my wife, I direct that she shall provide a Performance Bond to the Court to guarantee that she properly exercises her responsibilities in handling, investing and spending our children’s money.
So my wife won’t waste and spend our children’s money foolishly, our children shall have the right to demand and receive a full accounting from their mother of all financial transaction with their money as soon as they reach legal age.
When our children reach age 18, they shall each have the right to demand and spend their share of my estate. No one, not even their mother, shall have any right to question my children about how they decide to spend their individual shares.
Because my business is a competitive one, I want my wife and adult children to compete as to who shall run it after my death. I have, therefore, made no provision herein for the continuation or sale of my business, Closely Held Dental Lab, Inc. after my death. Also, believing that Judges are great businessmen, I want the Probate Court Judge to approve of all decisions made by the administrator of my estate in running my business or selling it, before such decisions can become effective.
If my wife remarries and also dies without a will, her second husband shall be entitled to one-half of her estate, including one-half of everything I left her.
My wife’s second husband shall not be obligated to spend any part of what he gets from my wife’s estate for my children’s health, education, and welfare, even if they need it for their care, and he shall have the sole right to decide who shall get his share, even to the exclusion of my children.
If my wife predeceases me or dies while any of our children are minors, I do not wish to exercise my right to nominate who shall be the guardian or guardians of the persons and of the estate of our children. Instead, I direct that my friends and relatives get together and select a guardian by mutual agreement and, if they fail to agree upon a guardian, then I direct the Probate Court to select a guardian, or, if it wishes, a separate guardian for the person of the children and a separate guardian for the estate of the children and an attorney for the guardian or guardians. The Court can, if it wishes, appoint any stranger or strangers acceptable to it.
Even though under existing tax laws there are certain legitimate ways for me to lower Estate Taxes, I prefer to have my money used for governmental purposes rather than for the benefit of my wife and children. I direct that no efforts be made to lower taxes and that my estate pay the maximum amount of taxes possible.
Instead of naming an executor of my choice, I leave it to my family to pick someone as administrator of my estate and, if they cannot agree, then the Probate Court shall choose anyone acceptable to it and he shall have the right to employ an attorney to help him probate my estate. Both of them shall be paid for their time from the assets of my estate before my family gets anything. And, no matter who is appointed to administer my estate, such person shall be required to post an Indemnity Bond and the cost of such bond shall be paid from the assets of my estate and I give up the right to waive the requirement that such a bond be purchased and paid for from my estate.
IN WITNESS WHEREOF, I have set my hand and seal to this, My Last Will and Testament, consisting of two pages, on this _________ day of ___________, 2003.
If you don’t like this will, which the state provides, get to your lawyer’s office as soon as possible and formulate your own Estate Plan before it’s too late.
Besides avoiding the Statutory Will, why should you have an Estate Plan? Good question. First, you need an Estate Plan to provide for the orderly transfer of your property, both during your life and after your death. An Estate Plan also provides for your own security and that of your family.
Second, you need an Estate Plan to avoid shrinkage of your estate by:
1. Income taxes
2. Federal estate taxes
3. State inheritance taxes, although some states, such as Illinois, have repealed their inheritance tax laws.
4. Forced liquidation of a business or other assets.
5. Administration expenses, including attorney’s fees
6. Poor management
Third, you need to provide for the welfare of your spouse and children and to avoid family disputes. Your lawyer can help you establish a sensible plan, but he or she needs certain information from you. This information will include the following:
1. A family history and its current status
2. A list of those you wish to benefit
3. What assets you have and how they are currently held.
Your assets include all of the following and more:
a. Cash and bank accounts
b. Securities-stocks, bonds, and similar holdings
c. All business interests
e. Personal property, such as jewelry and gems
f. Real property
i. Profit sharing plans and other employee benefit plans and IRAs
j. Tax shelters
4. Any liabilities you have
5. Prior gifts you have made
6. Present and future interest in trusts and estates
7. Your desires regarding:
a. Disposition of assets
b. Executor(s) and alternate
c. Trustee(s) and alternate
d. Guardian(s) and alternate
e. Charitable gifts
f. Gifts of body or organs
g. Whether your life should be prolonged by artificial means even if you have an incurable condition and death is imminent. Many states now have laws permitting one to execute a Living Will or Power of Attorney for Health Care, which can designate someone to make health care decisions if you are unable to do so.
A separate Power of Attorney for property can be given to another person to handle your financial and legal affairs if you are unable; but, be careful as a Power of Attorney is a license to steal in the hands of a dishonest person.