Is having a will drafted one of those things that you’ve been meaning to do for years but just haven’t gotten around to doing? Well, you’re not alone. Most successions I handle are intestate, meaning the person has died without a will.
The truth is getting a will requires you to contemplate your own death - not particularly appealing to most people. There also may be some heavy decisions to be made. On top of that, you have to set aside some time and money to meet with a lawyer; again, not something most people want to do. And for all that effort, what do you get? NOTHING. A will doesn’t have any effect until you’re dead.
So the short answer to the question of whether or not you need a will is a resounding NO. However, there are a few reasons you may want to have one:
DISPOSITION OF YOUR PROPERTY. When a person dies without leaving a will, the laws of your state will decide how your property devolves. The rules are a bit complicated in Louisiana. Ownership of your property goes to your children, but if you were married at the time of your death, the limited use of the property goes to your spouse until their death or remarriage. Most married couples I see for wills want their spouse to have full ownership of their property and not just limited and conditional use, so for them, a will is needed to make this happen. This is the most common reason I see people getting wills, but there are many more such as disinheriting a family member, making a charitable bequest, rewarding someone or an organization special to you, or avoiding your property being taken by the state when one has no legal heirs.
PARTICULAR LEGACIES. When you die without a will the law provides that everything you own goes to the class of people designated as your heirs, and it will be the administrator and courts call on what things go to whom. If you want to make sure your son who loved fishing with you gets your tackle box or your granddaughter who is a chef gets your cookware then you need a will to make sure certain individuals get certain items.
EXECUTORSHIP. Whether you die with or without a will, someone will be in charge of collecting your property, managing and liquidating it while the succession is open, and distributing it to your heirs. This person has extraordinary power. They will have access to all your property and make all decisions for your estate. All too often this power is abused. Sometimes money is stolen; sometimes the administrator uses his power to engage in petty sibling rivalries; and sometimes the person in charge just neglects to do what is necessary to get the succession closed in a reasonable time. It is important that the person in charge is trustworthy and competent. In a will you can designate who the executor will be, but without a will, generally the court will appoint the first person who rushes to the courthouse asking for the appointment.
TUTORSHIP. For parents with minor children, more important than what happens to their property is what happens to their kids. A will provides an opportunity for you to say who should take care of your children in the event they are orphaned. A will can also contain a simple mortis causa trust which provides for how your assets should be used for the care of the children and when, ultimately, they should receive their legacy. No one would want their recently orphaned minor children to become the subject of a custody battle, so anyone with kiddies should consider a will.
SAVE TIME AND MONEY. No a will can not save you any time or money, but invariably it will do so for your legatees. Louisiana has a provision for what is called “independent executorship”. If you designate your executor as “independent” in a will, things will be much easier for them. They will be able to perform their duties without constantly having to get court approval for a number of things. The process of getting court approval is archaic and burdensome in many ways. For one, it can require advertisements to be published in local newspapers, which is a straight up racket. Almost no one reads those things and the price of publication is exorbitant. The lawyer has to do a lot more work, the courts will want more money, and everything takes time. All of this can literally mean the difference between the succession being open for three months or three years and the difference between the succession costing $3,000 or $30,000. Do you want your estate to be dwindled down and delayed by lawyers, courts, newspapers, etc., or do you want your loved ones to get the most possible as soon as possible? A professionally prepared simple will is a bargain compared to the alternative. I generally charge $250 - $500 for the entire package, depending on complexity.
POWER OF ATTORNEY/LIVING WILL. When I prepare a will for someone, it almost always is part of a package that includes both medical and financial powers of attorney as well as a living will. Powers of attorney can be tremendously valuable in the event you are no longer able to make decisions for yourself. An interdiction proceeding, in which someone has to petition the court to have you declared incompetent so they can manage your affairs for you, takes a long time and costs tons of money. If you sign a power of attorney before you lose your competency, then an interdiction is largely unnecessary. With dementia seeming to become more prevalent, it’s a good idea for everyone to have a trusted agent appointed for them through a power of attorney. A power of attorney can also be of convenience to you, even if you remain competent. A living will dictates the conditions upon which you will be kept alive through life support. Do you want your loved ones to be forced to make the decision to pull the plug, or worse, do you want them fighting about that decision?
If after reading these considerations, you feel getting a will package drafted is the right decision for you, or if you have more questions, please give me a call or send me a text at 504-920-9050.
Joaquin Shepherd, Esq.
The Shepherd Law Firm