The Importance of Having a Will
Guest: Dennis Christensen – Elder Law Attorney
Host: Sally Smith – Author/Resource literature on age-related disease and healthy aging
Sally Smith: Welcome to Age to Age. I’m Sally Smith. Let’s talk. With us today is Dennis Christensen. He’s a member of the National Academy of Elder Law Attorneys and has given us a wonderful overview of what we would, ideally, have in our possession as we age, as far as legal documents go. One of the main ones you started out with, Dennis, was a will. I was stunned when I learned that otherwise smart business people often die without a will. How important is a will?
Dennis Christensen: A will is very important if you want your assets to go to the people that you choose at your death. And it’s very important if you want to name a person to be in charge of handling your affairs after your death. If you don’t have a will, the state of South Carolina writes a will for you. They probably will not distribute the assets the way that you want them to be distributed, and may not name the person as the executor, or personal representative, that you may want. So, you’re really throwing your hat in the ring with the state of South Carolina if you don’t have a will.
The reason that people do wills is so that their intent, I mean, you work to collect assets and to have a certain lifestyle, and all of us think it’s very important to pass that on to our children, or to charities, or other people, at our death. Well, the will is the mechanism that allows you to do that and it allows the person you choose to be in charge of that. The person that’s called an executor, or personal representative, will also take your estate through probate. When you have a will, and if there are any assets that are in your name only at the time of your death, in order to get your name removed from that asset, you have to go through probate.
What probate does is determine whether your will is valid, and then makes sure that those assets get distributed in accordance with your will. So, the will is the roadmap as to how your assets are to be distributed. And if you don’t have one, for example, let’s say you’re married, you have a wife and three kids, most people would want, if they die, everything to go to their spouse. Well, if you don’t have a will in South Carolina, half of your estate goes to your spouse, and half goes to your kids. Let’s say you’ve got kids that are 3, 10, and 25, and one of your kids is mad at you, they don’t have to give those assets back to you. So, now, you can own your house with your children, which may cause some very disastrous consequences if you don’t have a will. People that you may not want to have assets end up receiving your assets under the will the state draws for you.
Sally Smith: In this scenario, you just used it as an example, a minor child would have to have a guardian, which, probably, in that situation couldn’t be the mother because she would be benefiting from the decisions made by the child. Does it get that complicated? Would they have to appoint guardians for children that now have assets that are in contention, possibly, with their own mother?
Dennis Christensen: Well, one of the other very important reasons for having a will is, if you have minor children, whether they’re disabled, or you have a spouse that’s disabled, is to name a guardian for those people. You can name a guardian for your minor children. You can name a guardian for your spouse if he/she has Alzheimer’s, or some other kind of disability. So, it allows you to name a guardian. If you don’t, that person, who is either a minor or disabled, doesn’t have someone who is authorized to make decisions for them. The probate court would then approve a guardian for that minor child, or disabled spouse, and they may not choose the person you’d want; it’s a crapshoot. The judge is going to decide based on how he/she feels at that time. Whether the judge picks the same person you’d pick is by the roll of the dice.
Sally Smith: Also, it’s expensive.
Dennis Christensen: And it’s very expensive, very contentious. So, naming a guardian, especially if you have children, really requires a will, if for only the purpose of naming a guardian, but it’s also important when you have a disabled spouse. You can name the person to take care of them so that, again, it doesn’t end up in a free- for-all contest between the children. We’ve had a number of cases where the mother has Alzheimer’s and the father is in pretty good health. He does the will, but doesn’t name a guardian. So, after his death, all of the children will fight over who’s going to be in charge of their mother: who does Mom live with? Who’s going to manage her money? There are some real disputes that can be very expensive because they go through the court. So, using a will to name a guardian is to eliminate one of the things that most people are concerned about. If you have a disabled child, or a minor child, you want to determine who raises that child, and not have the courts, or someone else, make that decision for you.
Sally Smith: How old should a person be when they make a will? I mean, just standard practice, should a person do it as soon as they get out of college, when they first get married, have their first child? Is there some rule of thumb that’s recommended?
Dennis Christensen: You have to be 18. You have to be an adult. We have people do wills when they’re 20, 21. We’ve had some military people, going overseas, they might be 19. All you have to be is 18. All of us can die at any time, and all of us can have assets, and a will is a way for us to control where we want those assets to go. If someone dies, and they’re 19, they could have a million bucks, and they may have some very definite ideas about where they want that to go.
Sally Smith: Also, how difficult, or simple, is to make a will? Is this something you could, if you were a young person, download off the internet, or is this something that you definitely need to go to a lawyer for? How does one make a will?
Dennis Christensen: A lawyer is not required to make a will. Anyone can make a will. You can go online and get forms for wills. The problem is that it’s never as simple as a, b, c. There are a lot of nuances. If you go online and get a will, and download it, what happens if it’s not witnessed properly? What if it doesn’t have the right language? Those things, you’re not going to discover until it’s too late. And, at that point, you can end up in probate court trying to decide whether the will is any good or not. So, the piece that’s important to have is, not only the document itself; the written piece is the easy part, knowing whether all of your particular needs are met, and that is what going to a lawyer provides.
Simple wills are really not that expensive, but if they don’t work, because you haven’t followed the requirements, they can become very expensive for your heirs. You could end up with assets not going to the people you want. You could end up having your children receiving $200,000, $300,000 at age 18. You could have a person who is disabled, and receiving public benefits, lose all their public benefits because their named incorrectly in a will. So, it’s really a good idea to see a lawyer to make sure that your wishes are met. There is no such thing as a simple will. There are a lot of things that come in that have to be considered before you can be sure that what your want is reflected in that document.
Sally Smith: One other question: if you were to make a will, is there a certain time period that, by law, it has to be updated? If you’re happy with your will, can you keep it 30 years, or do you need to update it every so often, what about updating a will?
Dennis Christensen: Once you have a will, it remains valid until you die, or until you revoke it. If you move from South Carolina to Georgia, for example, your will is still valid. We’ve had people come in that drafted wills back in the 1940s, and 50s. Those wills are still valid. So, there’s no expiration on wills. They last as long as you do. Then, at your death, it goes through probate.
Now, generally, changing of wills, there are certain times when you want to consider changing your will. If there’s some change in your financial situation, you need to consider changing your will. They usually call that a codicil. Sometimes, we just start over with a new will. If you have a child that has become disabled, or your spouse has become disabled, any medical changes, you need to consider having another will. If you have acquired a lot more money than you originally had, you may need to be concerned about estate taxes. So, anytime you have any change in your health or your financial situation, or any of the people you name in your document have changes in their health or financial situation, you need to find out whether any changes need to be made.
It’s relatively easy to change your will, and you can change it as often as you want. We had a client once that changed her will six times in one year, and we couldn’t figure out why she was changing it so often. She was an older woman that just liked to come in and sit in our office to talk to people because she was lonely, and she didn’t mind paying for me to change her will. We would change small pieces of it and, finally, we realized why she was coming in. But, you can do that.
Sally Smith: She wanted to go to the feel-good man.
Dennis Christensen: She wanted to come and talk because she was all by herself, all day long.
Sally Smith: That’s the saddest thing I ever heard.
Dennis Christensen: So, that’s not, generally, a recommended reason for changing a will; we need to look at some other things, but it’s very easy to change a will.
Sally Smith: Okay. Thank you so much, Dennis, for telling us about this very important document. And, any of you who don’t have one, or haven’t renewed it for your current situation, let this be a wakeup call. We thank all our listeners for joining us. We welcome your suggestions, always. Please give us your comments on our website. This is Sally Smith, Age to Age, saying goodbye and wishing you courage and joy on your own journey. We are all connected.
If you enjoy listening to Sally Smith, you can buy her book, The Circle. It’s the story of how she personally responded to her mother’s journey with Alzheimer’s disease. It’s a wonderful gift of hope for anyone with a parent with dementia. Just click on Sally Smith’s name under the Health Professionals tab on the Podcast home page. All profits support research at the Center on Aging. Thanks.