Today I want to talk about the pros and cons of having a will. This topic has come up a lot lately with COVID as many people are starting to get concerned about having their estate plan in order, which honestly is a good thing. It doesn’t matter what’s going on in the world, you should have your estate plan in order. This past week specifically I’ve spoken with a lot with clients about wills.
A will is a legal document that tells the people that you leave behind where you want your stuff to go. A will also gives you the ability to decide who is going to be the executor, personal representative, or the manager of your estate. This is an appropriate place to communicate if you have specific heirlooms that you want to go to certain individuals. You also have an opportunity to let the people you leave behind know what your wishes are, and provide instructions regarding your funeral, burial, cremation, or whatever it is that you wish to occur after your passing.
A will is the most basic estate plan that you can get. The reason you would want a will is because you want to be able to dictate who gets what. You don’t want to leave it up to Nevada law, or whatever state your in’s law. You want to be the one to say, “I’m going to give my house to so and so,” etc. That’s one of the reasons you would want a will, is just to have control over who gets what. Another reason, as previously mentioned, is that you get to name your personal representative, your executor, the person that manages your estate when you’re gone. A manager, in the most basic terms, is the person that’s going to distribute your stuff. Ultimately, the pros are that you get control, you get to name your manager, and a will makes it so much easier for the people you leave behind to know what you wanted in order to carry out your wishes.
Unfortunately, many times when people pass away there’s a lot of internal conflict for the people they leave behind. Not only is it a highly emotional time and people are grieving, but a lot of times they start getting a bit greedy about money and assets. If you have a will, you’re doing your heirs a favor because you’re making it easy for them to say who gets what. If you don’t have a will, then there’s a lot more potential disagreements between people that you leave behind. However, the big con of a will is that it does not avoid court, meaning it does not avoid probate. Essentially, probate is the court process of transferring the dissidents assets to their heirs.
Once you pass, your will will be lodged with the court by your manager or personal representative that you designated in the will. Technically it’s actually the attorney that lodges it, but if the person doesn’t have an attorney then they would lodge it with the court. Your personal representative is most likely going to hire an attorney to file in probate court. That’s why it’s important to designate who you want to manage your estate, because the person you designate is going to have to deal with your estate, including dealing with the attorney and filing documents in court and signing them. You have to go to court if you have a will because ultimately you still need the judge to order your stuff to the specific heir. Your heirs are still going need to get an order from the judge. For example, if you leave behind a house and you want it to go to your brother and you put that in your will, then your brother still has to get an order from the court saying that he gets it before he can take over. That’s why probate court is important.
If you’re wondering what happens if you don’t have a will, your heirs will also be going to probate court. The difference is that the judge is simply going to take the Nevada laws, the intestate succession statutes, to determine who gets what from your estate. The judge doesn’t know what your wishes were, so they’re going to use the statutes to make that determination and order your stuff to the people that the statutes say should get it. That’s why you want a will, because then you have control over who gets what.
Another con of a will is that it’s public. Like I said, the manager of your estate has to lodge the will with the court, making it public record. When your heirs go through probate they are going to have to notice any and all creditors of your estate. Because it is public, there’s an increased chance that creditors are going to pop up since you actually have to notice them. This includes putting a notice in a newspaper that you’ve passed away, there’s an estate pending probate, and if they have a claim, they need to file something with the court. The fact that it is completely public record can be a con itself, because a lot of people don’t want their assets and their wishes aired for public view.
No matter the pros and cons, it’s better to have a will than nothing at all because at least you get to tell the court what you want instead of just leaving it up to the law. If you want to talk more about wills or estate planning or probate, visit our Website for more information. To schedule a complimentary, 15-minute phone consultation with our attorneys call (702) 850-7798, or click here to schedule your complimentary consultation.