By Jan Warner and Jan Collins
Monday, Oct. 26, 2009
Q: My wife and I are in our late 60s and have about $500,000 in assets. We don't anticipate paying estate taxes. We have one married child who has two children, both in high school. Every asset we own, including our home, is titled jointly with right of survivorship so that if I die first, she gets it all, and if she dies first, I get it all. Our small life insurance policies and IRAs go to each other as beneficiary. Given our planning, is there any reason for us to go to the expense of getting wills drawn up?

Q: My husband and I have been married for 51 years, and he refuses to see a lawyer to get his will drawn up even though he owns everything. He says that I shouldn't worry because I get what he calls a "wife's share." We have five children. I have never worked outside the home. He has a house, some furniture, savings and a small retirement. What happens if he dies first and has no will?

A: If your husband dies before you and has no will, the law of the state where you live dictates who inherits the house and the savings and in what proportions, regardless of your husband's intent. This means that if your husband owns all of the assets and dies before you, you will be in the unenviable position of owning all assets jointly with your five children or, in some instances, your grandchildren. This means real expensive problems to solve, much more expensive than the cost of a will.

Although you should check the law of the state in which you live, the following is an example of what happens in one state if a person dies without a will: (1) If married with no children, everything goes to the surviving spouse; (2) If married with children, one-half goes to the surviving spouse and one-half is divided equally among the children; (3) If unmarried with children, all goes to the children equally; (4) If not married and no children, all goes to surviving parents, and if parents are not surviving, to brothers and sisters equally with the child or children of a deceased sibling taking the share a parent would have taken; (4) If not married, no children, and no surviving parents or siblings, the law of the state defines what next of kin will inherit.

Bottom line: You and your husband need wills.

Q: My son and his wife have two children and are expecting their third. When we were talking, my son told me that he and his wife had not changed their wills since they were first married 12 years ago. I told them that if they did not get new wills prepared, their children would not get any inheritance and it would go to the state. Is this correct?

A: No. The "pretermitted heir" rule protects children who were born or adopted after a will is made. Unless the will specifically refers to the pending birth of the child, if your son or daughter-in-law dies without making a new will, the law presumes a child born after the will was inadvertently omitted and awards him or her an "intestate" (i.e., "having made no legal will") share of the estate. It is always wise to have new wills prepared after changes in life status such as the birth of children, marriage and divorce.

Q: I am a widow. If I will my property to my three adult children in equal shares, what happens if one of my children dies before me? Do his children get his share?

A: Unless your will provides to the contrary, anti-lapse laws will assure that if a beneficiary is related to you and dies before you do, the assets will be passed on to that beneficiary's heirs. If, however, the beneficiary who predeceases you is not closely related to you and your will does not provide otherwise, the assets will pass to the other beneficiaries or by intestacy. If is always wise to make sure your wishes are set forth in your will to avoid unintended results.

Jan Warner is an expert in both matrimonial and elder law and has been practicing for more than 40 years. Jan Collins is a freelance journalist and a special correspondent for The Economist. Check out their book "Next Steps: A Practical Guide to Planning for the Best Half of Your Life" (Linden Publishing) and learn more at www.nextsteps.net.

Copyright 2009, Jan L. Warner.
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