Oftentimes people either do not believe they need a Will, or delay creating a Will because they do not like to think about the finality of estate planning. People who decide not to prepare a Will have failed to consider the potential consequences of their decision, which is why it is important to meet with an attorney to decide what type of estate plan you need at any stage in your life.
Assets that you own jointly with your spouse transfer to your spouse when you die as a result of the joint ownership (e.g. joint bank accounts or a home owned as joint tenants). Certain assets owned in your sole name or held in accounts that do not name a beneficiary may need to go through the probate process in order to transfer to your beneficiaries.
Probate is the legal process of administering a deceased person’s estate. If you die without a Will in North Dakota and you own assets that need to go through probate, state law designates the beneficiaries of your estate. North Dakota law will dictate who inherits what percentage of your estate if you die single, married without children, married with children, or if you and your spouse each have step-children. Many people do not know these laws exist. One way to avoid the state determining who inherits from your estate is to have a Will in place before you pass away.
Another reason for preparing a Will is to name a Personal Representative. The Personal Representative is an individual or individuals who will administer your estate. Again, if you do not have a Will, state law gives priority for certain family members to hold this position. Ultimately, the court may end up appointing someone to administer your estate that you may not have desired to administer your affairs.
For people with minor children, appointing a Guardian or Trustee is another reason to prepare a Will. Outside of ensuring that individuals you want to inherit actually do inherit from your estate, appointing a Guardian or Trustee can be one of the most important reasons to have a Will. If both you and your spouse die, the court will appoint a Guardian or Guardians to raise your minor children. Your Will allows you to designate the guardian you would like to see raise your children. Without a trust for your minor children created in your Will, the court will have to appoint a Conservator to manage the assets of your minor children until they become a legal adult, which could mean they receive all of the remaining assets at age 18. However, as with the Personal Representative, the court appointed Guardian or Trustee may not be someone that you would have chosen to raise your children or manage their assets.
While these are some of the most common reasons why people should have a Will, many other considerations exist when putting your estate plan together. After you have met with an attorney and had an estate plan prepared that meets your needs, you should update your estate plan as your life and circumstances change. It is easy for people to think they do not need to worry about this kind of planning or delay making difficult decisions, but it is always better to have a Will and not need it, than to need a Will and not have one.
*The information provided in this article is of a general nature and should not be acted upon without prior discussion with your Ohnstad Twichell, P.C., attorney.