When you choose the route of over half of all Americans and leave no valid will, the state must intervene. You leave your heirs a legacy of neglect, confusion and waste at a time when they are least equipped emotionally and perhaps financially for such an inheritance.— American Diabetes Association pamphlet, How to Protect Your Rights With a Will
Are you thinking that you are a person of modest means with few assets, and that you don’t need a will? This thinking can cause heartache and confusion for your family at the time of your death. The process of clearing everything up without a will is difficult, especially for those who are grieving. It is full of fees, bond requirements, frustration and confusion.
Attorneys who practice with an emphasis on elder law and estate planning know first-hand the consequences of not doing pre-planning. Our challenge is to explain options in a way that will strike home and finally be meaningful to the listener or reader.
Many people view a will as something nice to do, but not necessary. They often think “Maybe I should get a will done. I don’t have one.” In the strictest sense, that is not true. If you have not written your own will, the State of Maryland has one written and in place for you.
I have seen “your” will, prepared by the State, in several different places. The one I am going to share with you today was included in some materials provided by the Maryland Institute for Continuing Professional Education of Lawyers, Inc. (MICPEL). Insert your name where appropriate, and think about whether you want this to be the summation of your life and the distribution of your assets:
Being of sound mind and memory, I, _________________, do hereby publish this as my Last Will and Testament:
FIRST: If none of my children are minors, I give my spouse $15,000.00
SECOND: I give 1/2 of the balance of my estate to my spouse and 1/2 to my children.
A. I appoint my spouse as guardian of my children, but as a safeguard, I require that he/she report to the Orphan’s Court regularly and render an account of how, why and where he/she spent the money necessary for the proper care of my children.
B. As a further safeguard, I direct my spouse to provide to the Probate Court a Performance Bond to guarantee that he/she exercise proper judgment in the handling, investing and spending of the children’s money, unless my spouse can prove to the court’s satisfaction that such bond is not necessary.
C. As a final safeguard, my children shall have the right to demand and receive a complete accounting from my spouse of all of the financial actions with their money as soon as they reach legal age.
D. When my children reach the age of 18 years, they shall have full rights to withdraw and spend their respective shares of my estate, whatever the state of their maturity, and however they please. No one shall have any right to question my children’s actions on how they decide to spend their respective shares.
THIRD: Should my spouse remarry, his/her next spouse shall be entitled to take a 1/3 share of everything my spouse possesses, including all that I left for him/her, including my life insurance, or a 1/2 share if there are no surviving children. The next spouse shall have the sole right to decide who is to get his/her share, even to the exclusion of my own children. The second spouse shall not be bound to spend any part of his/her share for the support of my children.
FOURTH: Should my spouse predecease me, I do not wish to exercise my right to nominate the guardian of my children.
A. Rather than nominating a guardian of my preference, I direct the Court to choose for me. If the Court wishes, it may appoint anyone who petitions the Court and claims to be interested in the welfare of my minor children.
B. If any child has attained the age of 14 years, the Court may appoint a guardian chosen by the child.
FIFTH: Under existing tax law, there are certain techniques available for minimizing death taxes. However, I prefer that my estate be used for governmental purposes, rather than for the benefit of my spouse and children. I direct, therefore, that no effort be made to lower taxes so that the government may benefit to the maximum extent permitted by my death.
SIXTH: Unless there is prior approval of Court, I direct that no funeral or burial expense in excess of $5,000 be paid from my estate.
IN WITNESS WHEREOF, I have set my hand to this, my Last Will and Testament.
There you have it. Is that the Will you want?
This much is obvious: If you have minor children, run, don’t walk, to your nearest attorney and prepare a Will that will name guardians for your children in the event of your death. You want to choose their guardians, don’t you? Check above again. How does the state do it?
Thanks for reading. See you next week. Stay well