Write a will to avoid family disputes, save money and decide who gets what

Written by Desmond

January 4, 2022

A couple of years ago I decided to ask every new client if they had a will. I was curious to know if this was a real issue or just something I had experienced anecdotally.

So, I added that question to my list of the first interview questions I ask.

I stopped counting at 87. That’s right folks: 87 people in a row did not have a will.

Yikes!

So, today I’m going to beg, threaten and plead with each of you who need one to set aside some time and fix this easily resolved problem.

Let’s start with the easiest reason to do so.

A will allows you to decide who gets your assets and other property when you pass away. And it lets you set up a trust if that person does not survive or is too young to handle the responsibilities of money, investments and real estate, and so on.

But if you don’t have a will, guess what? The state intestacy laws decide who gets it all. And that may or may not be your wife. And it may be a minor child. Also, spouses of your children often are going to exercise their influence to make sure there is a “fair” division of assets. And remember those gifts you made that weren’t properly/formally/legally transferred? Who legally takes those assets now? And what about your children who don’t care for your present wife — who takes your home?

Folks, you don’t want to know the answers to those questions.

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Even after 44 years of law practice, I continue to be absolutely astounded by the conflict that arises after someone passes away. While your family may be suffering from grief, oftentimes they also suffer from greed — especially in-laws. They may feel strongly about these affairs, and may become aggressive about pursuing what they think is “right.” It doesn’t matter that they are family members; the fact that they feel intensely about an item is enough to result in litigation. And when that happens, the only people who benefit are the lawyers.

I know, my readers are saying this won’t happen to them, their family won’t end up in conflict. Folks, that is a common misperception. If you want to protect your family, then have a will written by a competent attorney and avoid all this drama.

In addition to deciding who gets your assets and to avoid creating family conflict, there can be substantial cash savings by having a will.

When you die, your assets must be collected, your bills paid, and whatever is left over must be transferred to the proper heirs. How that gets accomplished can be very expensive — or inexpensive.

Some states, like Texas, have independent administration. That means that a court is not involved in most of this process. Instead, you can name an individual to handle that process for you. Almost all of the probate process can then be done by a friend or family member essentially free of charge.

But if you don’t have a will, then a court takes over those duties. Typically, the court will hire an attorney to handle those duties. Every decision, every disposition and every transfer normally must be approved by the court. There can be some serious money lost here.

But the only way to get an independent administration is to have a will, and that will must specifically call for independent administration.

So, you need a will for many reasons. They include deciding who gets what assets and when — to avoid family disputes and to save money.

Next week, we’ll talk about how to make all this happen easily and quickly.

David Leeper is a board certified federal tax attorney with 40 years of experience. He may be reached at 915-581-8748, leepertaxlawelpaso@gmail.com and leepertaxlaw.com.

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