So, Why Don't You have a Will?; (There's no Good Reason)

Something about wills must scare people. Some years ago, a legal publisher noted that only 27% of the population had signed wills. The article then speculated on the reasons, finally attributing the failure of most people to have wills to a mix of superstition, ignorance, and laziness. The article ended with the lament, often heard among attorneys, that clients who lacked wills would pay the piper sooner or later.

To those of you who are among the intestate 73% of the population, we ask, "What's your excuse?"

We don't know any good ones.

Wills serve two principal purposes: they dispose of property and they designate people to administer property and, in the case of surviving small children, they designate people to manage the assets of the children. Since these people are chosen by the maker of the will (known as the testator), one can fairly assume that they enjoy a special confidence and a special relationship to both the testator and to his family. Their job is to care for matters and people which were important to the testator during his life.

This article is far too short to deal even with the most basic elements of wills - we'll do that in occasional sequels (why should George Lucas have all the fun?) - but we can give you the top two reasons why you should have a will if you don't already:

1. Control. Most people like this. If you have a will, you are able to control the disposition of your property far more effectively. Some of an estate planner's most flexible and interesting tools, including all trusts, are available only to testators.

A will offers an even more basic control. Anyone who does not take the time to direct the disposition of property will find the State ever willing to do it. (The curious can find the provisions at N.J.S. 3B:5-1.) The downside of this governmental scheme is that the people to whom the State gives the property, usually close relatives, may not be those to whom the testator would have chosen to receive the property.

2. Expense. Wills save money. Most people like this even better than they like control. Many clients who are writing their first wills tell their fears of the dreaded "probate." Probate, in this context, is used in its colloquial meaning of the entire expense of estate administration and not in its technical sense of "proving" the will. Well, however expensive probate is with a will, it is far less expensive than the cost of estate administration in the absence of one.

The easiest example of the saving of money through a will is that a competently drawn will absolves the executor and trustees of the obligation to post a bond. A bond is a security for honest performance which increases in cost with the size of the estate or trust and requires payment of an annual premium. On the other hand, virtually every estate which is administered without a will must post this bond - and keep it in force during the entire duration of the administration of the estate, a period which in a complicated estate can last several years.

The most sophisticated way in which a will can save expense is through the minimization of estate taxes. Most estates administered without a will pay the highest possible estate tax. None pay less than they would pay were a will in existence.