Do I Need a Will?

People often ask whether they need a will. The truth is some folks don't; most do. This article explains the benefits of a will and why you may or may not need one.

-- By K. Gabriel Heiser, Attorney

A common question estate planning and elder law attorneys often get asked is "Do I really need a will?" (The next question is always, "How much does it cost?" but we'll discuss that another day!)


Most people would assume that an estate planning attorney would always answer "Yes, of course," but such is not the case. Many people simply have no need for a will. But let's take a look at why you may indeed want to have a will.


First, only in a will can you name the person(s) whom you would prefer to handle your estate after your death. Such person is called the "Executor" in some states, the "Personal Representative" in others. In any case, this person is the one who files the original will in court (usually with the help of an attorney), gathers and protects all your assets, pays all your debts, files the estate tax return (if necessary), and distributes your property in accordance with your directions as set forth in the will.


With no will, someone still has to go to court to get the legal authority to deal with your property and do the same tasks as the Executor, but this time it is up to the probate court judge who that person is. Since you left no indication whom you wanted, a battle could ensue. A will solves that problem, since it is rare that the court will not appoint the person(s) you named as Executor in your will.


The second big reason to have a will is if you wish to distribute your property in a way that differs from the default rules of your state. Every state has a statutory will, essentially, for those who did not write their own will. This scheme of distribution is called "intestacy" ("testate" means will, so "intestate" means with no will). For example, most state intestacy laws say that upon your death all of your money, assets, and real estate pass to your surviving spouse, if any, then in equal shares to your children, outright.


So a good reason to have a will would be any of these reasons:

  • You don't want to leave everything to your spouse.
  • You want to leave more to one child than another.
  • You have minor children and want to hold back their access to your money until they are at least age 25 or 30.
  • You'd like to leave $10,000 to your alma mater or your church or temple.
  • You want to "cut out" one of your children.
  • You'd like to leave money to a family member in a way that is protected against lawsuits, creditors, and divorcing spouses.
  • You'd like to leave a small sum to each of your grandchildren or a daughter-in-law.
  • Your parents are living, you have no spouse or children, and you want your assets to go to your siblings and not your parents.


So who does not need a will, then?

  • Your estate is relatively small and you're happy with how your estate would be divided and distributed under your state's intestacy laws.
  • You've completely avoided probate by using "P.O.D.," "T.O.D.," joint ownership with right of survivorship, a trust, or beneficiary designations on all your assets.
  • You're content having all your assets be immediately distributed to your heirs, regardless of their age or ability to handle money.
  • You're not overly concerned with who will handle the affairs of your estate after your death.


Finally, before you consider the cost of a will, consider the real cost if your wishes were not carried out because you needed a will but did not have one. Sometimes even the simplest will is better than no will at all!


K. Gabriel Heiser is an attorney with over 25 years experience in elder law and estate planning. Heiser is the author of “How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets,” an annually updated practical guide for the layperson. For more information about this book, visit Medicaid Secrets. For information about choosing between a will or living trust (or the need for both), go to living trusts and wills.


Here’s an article about Wills in state planning.


New! Comments

Leave a comment about this article in the box below and share it with your Facebook friends.

Have a Medicaid Question or Comment?

We'd love to hear your questions, comments or opinions. Submit them here and other visitors can read them and comment on them. An e-mail address is not required.


The purpose of this feature is to stimulate discussion and share experiences regarding topics of interest. However, please note these submissions are not reviewed for legal accuracy. They may not apply to your situation and should not be considered legal advice. For specific legal advice you must consult with your attorney.




Medicaid Planning: Life Estate in House | Does the $13,000 Gift Tax Exemption apply to Medicaid? | Medicaid and Community Spouse Assets | Planning For Medicaid Coverage | Effect of Life Insurance Proceeds On Medicaid Eligibility | New Medicaid Annuity Rule Explained | How Can an Irrevocable Trust Be Used in Medicaid Planning? | Selling the House and Medicaid Qualification | How To Qualify For Medicaid If My House Is Worth More Than $500,000? | What is Elder Law? | Living Trust and Medicaid | What Is An Inheritor's Trust? | Should I Take Out a Loan Against My House to Pay For A Nursing Home? | Can I Give My House to My Child and Qualify for Medicaid? | Elder Care Lawyer Fees | Choosing A Nursing Home | Capacity To Sign a Will, Trust or Power of Attorney | Second Marriage Will Issues | Special Needs Trust Issues | What is a Common Law Marriage? | What is a Medicaid Annuity? | How does a Medicaid Annuity Work? | How To Protect My Home and Still Qualify for Medicaid | Medicaid and Spousal Will Election | Do It Yourself Medicaid Planning | Medicaid Rules and Reverse Mortgages | How Does Life Insurance Policy Ownership Affect Medicaid Eligibility? | Medicaid Estate Recovery Rules | Medicaid Estate Recovery Planning | Limitations on Medicaid Estate Recovery | Do Medicaid Plans Work? | Nursing Home Costs and Payment Options | Don't Be Too Cheap! | What Happens to My Home If I Go On Medicaid? | Can Spouse Receiving Medicaid Pay Income to Community Spouse? | Will Medicaid Exempt My Home If I Leave It? | Tips for Discussing Wills and Powers of Attorney With Your Parents | Elderly Marriage Issues | Durable Power of Attorney Medicaid Considerations |


From Do I Need a Will to Medicaid Questions | Estate Planning Blog | Basics of Estate Planning | Selecting a Financial Planner | Estate Planning and Taxes | Is This Good Time to Buy a House? | Incorporate My Business | Best Low Cost Investment | Fringe Benefit Plans | Estate Planning and Charitable Giving | Health Insurance Comparisons | Best Medicare Supplement Plan | Retirement and Estate Planning | What is a Power of Attorney? | Current Estate Planning News | Estate Planning Forum | Estate Planning Books | Choosing an Estate Planning Attorney | Find a Probate Attorney | Estate Planning Questions |


Return to Home Page

About Us | Contact Us | Site Search | Terms of Use / Privacy Policy


Subscribe to
Estate Planning Hub


Your First Name


Your E-mail Address

We keep this private.



Follow the Estate Planning Blog.




--by Beth Heikkinen
Marquette, Michigan
I just want to thank you for this site. It answered my questions. I think many people that do research on the net take it for granted and when they find what they are looking for they forget "someone put time, money, etc into providing me with this information."

Thank you!


Like This Site





Visit Our Social Media Pages

Become a Fan of Estate Planning Hub on Facebook Follow EstatePlanningHub on Twitter Follow EstatePlanningHub on Google+ Subscribe EstatePlanningHub Video on YouTube

Get a PDF version of this website and its sister site here.