Opinion: There’s more than one way to draw up a will

A common question from clients is, “Should I have a will?” The simple answer is usually yes, but according to a report by CNBC, 68% of Americans die without a will.

The purpose of a will is to provide for the orderly transfer of your assets to your beneficiaries through a probate proceeding in the Circuit Court. Clients, however, are often unclear about the need for a will and what will happen if they do not have one.

First, let’s consider a person who dies with a will, called a testate decedent. Such a person’s will provides who will take the assets. They get to choose who will receive the assets, when they will be distributed and how much each person will receive. 

For a person who dies without a will, called an intestate decedent, there is no written will to direct who gets the assets. In that case, the state of Missouri essentially writes a will for them by statute.

The law, called intestacy statutes, provides who gets the assets, based on what the state thinks most people would want. The law therefore provides that the surviving spouse will take the entire estate if the decedent had no children.

If the decedent and surviving spouse had children, then the surviving spouse takes the first $20,000 in value, plus one half of the estate. If the surviving spouse was not the biological parent of the decedent’s children, then the surviving spouse simply receives half of the estate. In either case, the other half goes to the surviving children. If this does not conform to your wishes, and for many people it does not, then you may want to do some estate planning.

Clients are often unclear about what assets will pass under a will. Only assets in the sole name of the decedent pass under a will. Assets held between spouses as tenants by the entirety, or as joint tenants with rights of survivorship, become the sole asset of the survivor and are not affected by the will, even if the will provides otherwise.

Nor does a will control assets with pay-on-death designations, such as may be used for bank checking and savings accounts, or transfer-on-death designations, such as for vehicles and brokerage accounts. The beneficiary deed for real estate, another common probate avoidance tool, is also not controlled by the will. All such nonprobate transfer techniques remove the assets from the jurisdiction of the probate court and are unaffected by your will.

Some people avoid making a will by using only POD, TOD and beneficiary deed designations. This technique can be successful, but is not recommended for large estates, in cases where there are contingent beneficiaries or when the assets could go to a minor. It is also difficult to get proper designations on all property. 

If an asset is forgotten, or a beneficiary predeceases you, the asset would still pass under the will or by intestacy if you have no will.

A will is more appropriate than nonprobate transfers if you do not want your assets to pass to your beneficiaries immediately upon death. If you have minor children, a beneficiary with disabilities or a beneficiary that is not able to manage financial assets, you would want the assets to be held in a trust created under your will until they were at least 18 years of age.

In addition, a will is the only place in which you can designate a custodian for your minor children.

If you want to avoid probate altogether, you could set up a revocable trust. Assets placed in your trust during your lifetime or directed there on death by a nonprobate transfer do not go through probate and are not controlled by your will.

Even if you do have a trust, you will still have what is called a pour-over will. This type of will acts as a safety net to transfer any assets in your name alone to your revocable trust. Anything passing under your pour-over will, however, must go through probate, so you will want to be careful to direct all your assets to your trust.

While almost everyone should have a will, there are many different planning techniques to handle your assets, and no single solution applies to all people. It is a good idea to confer with your planning professionals to design a custom plan for your unique circumstances.

Stephen F. Aton is a Springfield attorney and owner of Aton Law Firm LLC, practicing estate planning, corporate and real estate law. He can be reached at steve@atonlaw.com.