Make a Will or the State Decides: A Cautionary Tale


By Miguel Torres of Miles & Torres Associates
November 19, 2014

Recently, a client came to see me to make a will -- she told me that her friend’s death prompted her decision to begin her estate planning. Her friend Thomas died without a will, and thus his assets and possessions were distributed to his parents, the same people that rarely saw him, never sent him birthday cards, or took an interest in his life. Although her experience was different, she wanted to
decide who would get her beloved dog Thea, her vinyl collection and most importantly, her computer and all the contents in it.


Making a will should not be a complicated, distressing, or morbid process but rather an exercise in preparedness so you can concentrate on living. Many believe that a will is only necessary if they have children and/or large assets to leave to their families, but a will is not only for parents or the wealthy; it is a necessity for people who do not want the state deciding how to distribute their assets.

Many people think of wills in relation to bitter disinheritances or surprise windfalls, but those Dickensian events are far from the norm. Others believe that there is no need to write a will because they are young and healthy, but we all know that sometimes the finest die young. Writing a will does not mean that a person is about to die, it is simply preparing for unforeseen circumstances. Every person should have a will regardless of his or her age, or whether he or she has any other estate planning tools.

Without a will, the government decides who gets your assets, regardless of your wishes or the type of relationship you had with the potential beneficiaries. Generally this means your spouse; or if you are unmarried, your children or your parents. You worked very hard to accumulate your assets, you should decide who gets them when you pass away. A will in essence is a set of instructions on how to
distribute your assets; it spells out who gets your money and how much of it. Plus, in a will you can leave specific instructions for your burial or cremation. 


If you die without a will and leave behind a spouse/domestic partner and children, your assets most likely will go to them. However if your
spouse/domestic partner dies before you, his or her relatives may receive some of your estate. It is also important to note that non-registered domestic partners and friends get nothing if you die without a will. If you want to leave something to your friend(s), stepchild, charity and/or your unregistered significant other, then
you need a will.

If you die without a will and have no living relatives, the state of
California is your beneficiary. That may not be so bad, but perhaps you would rather choose a friend or a charity of your choice to receive your money.

While some people may be okay with the state deciding how to distribute their assets after they die, parents have another important reason to draw up a will. If you have minor children, you need to decide who you would want to take care of your children if something happens to you and your child’s other parent. A will
gives you the opportunity to name a guardian for your minor children, and lets you create a system for supervision of any property you leave to your children. In a will you can nominate a person to take care of your children who are under 18. You can also nominate a person to manage the assets you leave to your minor children. It may be the same person that cares for them, but it does not have to be.

Importantly, a will helps you avert costly and nasty legal battles over child custody and assets. If you leave clear formal instructions about who should care for your children, and who gets your assets, then it is less likely that your family members will challenge or misinterpret your wishes. The last thing your family needs in a time of grief is to start a court battle –sometimes these legal battles can create family
rifts that are impossible to heal.                                                                                                         
Most of us hate to think about our own mortality, but fear of facing our own mortality should not be a reason to put off making a will. Once you make your will, you put it away in a safe place, and continue enjoying your life.