Judd Matsunaga
For Americans busy trying to pay the bills and shuttle the kids (or grandkids) to school, the last thing on their minds is their mortality. Perhaps that’s why more than 64 percent of Americans don’t have a will (Source: 2015 Rocket Lawyer survey). “I’ll get around to it someday.” However, quite too often, “Someday” never arrives.
According to Lisa Honey, director of product marketing at Rocket Lawyer, “You can see in the data that the No. 1 reason people don’t have a will is because they haven’t gotten around to it yet, but that doesn’t tell the whole story.”
Why haven’t they gotten around to it?
“It’s partially because most people don’t like to think about death,” she added, “or because they falsely believe wills are only necessary if you have a multimillion-dollar estate. Of those without a plan, about 15 percent said they don’t need one at all.”
A Google Consumer survey by USLegalWills.com (June 2016) suggests that the previous surveys may have underreported the number of Americans without a will by not including those who have a will that is out of date. It found that 63 percent of Americans do not have a will and 9 percent have a will that is out of date. This means that 72 percent of Americans do not have a will or do not have an up-to-date will.
“But Judd, what do you mean ‘up-to-date’ will?” People are sitting on wills that are decades old. Changes in family situations like marriage, divorce, births and deaths can all render a will obsolete. Yet, they are technically still the legal last will and testament, which can be quite troublesome if not updated.
One of the most common excuses for not making a will is “my spouse will get everything anyways.” That’s true if you hold assets “jointly.” But what if you pass away simultaneously in the same car accident? What then? Or, what about the accounts you own in your name alone? Every state has its own rules for distributing your estate if you have no will. In California, your spouse inherits 50 percent of your estate, and your children inherit the other half.
Many people may be planning to write their will just before they die. That’s a wonderful concept, but a bad idea. The reality is that we don’t know when we are going to die. “But what if I have more children or grandchildren?” The best answer is that you should write your will today, and update it whenever there is a change of circumstance.
Furthermore, you have to write your will when you have mental capacity. So, waiting until you are very old or diagnosed with a terminal illness is not the best time to be considering these weighty issues.
Your will should be written while you are young and healthy and then updated throughout your life as long as you are of “sound mind.” (Some of us better hurry!)
According to the Google survey, what most people fail to understand is that writing a will is really not about you at all. It’s about helping your loved ones you leave behind. That is, not putting them through probate, the legal and administrative turmoil that comes with dying intestate (without a will or living trust).
If you die without an estate plan, i.e., without a will or trust, the state will decide who inherits your property through the laws of “intestate succession.” That could mean that people you don’t even know (or like) would inherit your estate. So, the only question is whether you decide or the state decides.
California law is specific about who has a share in the intestate estate. For example, if you are survived by a spouse and children: the surviving spouse will inherit all of the deceased spouse’s community property and one-half or one-third of the deceased spouse’s separate property, and the children will inherit one-half or two-thirds of the deceased spouse’s separate property, depending on the number of children.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you.
For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great-uncles or aunts, nieces or nephews, cousins of any degree or the children, parents or siblings of a spouse who dies before you do.
That fact is, sooner or later, all of us must keep a personal, unavoidable, appointment with death. It is foolish to think that death is unlikely. We may not have much control over when we leave this planet, but we do have a say in how we leave and the impact it will have on our families. That’s why the Bible says, “Put your affairs in order, for you are about to die” (2 Kings 20:1).
In conclusion, why not add this to your list of New Year’s Resolutions — “Put your affairs in order.” I would encourage you to make your will. Better yet, make a living trust to avoid the legal court process known as probate. A living trust is the best way to avoid probate and get your assets to your heirs as quickly as possible.
Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or constitute legal or tax advice and should not be treated as such.
