Even when clients wish to avoid probate and have done everything in their power for nonprobate administration at death, a will is a good back-up plan to take care of whatever may have been overlooked. For example, unexpected death may give rise to a claim for wrongful death, and the proceeds of the litigation will necessarily pass through probate and be disposed of as the client’s probate estate.
There are several actions one can take by making a will:
- The client may change the rules of distribution that would otherwise apply under the laws of intestate succession.
- They may also designate a chosen person or persons to administer the estate as personal representative. This often may waive the need for the representative to post a bond, which would otherwise be a financial burden on the estate.
- The guardian for an orphan child may be designated
It may not be possible to disinherit spouses and children completely, but the bulk of one’s estate can usually be left to one or more persons by executing a valid will.
Wills are particularly important in several common circumstances:
- Intestate succession is unlikely to lead to the client’s desired result in gay, lesbian, and other nontraditional family arrangements, so the will is critical. Single people who wish for their property to be left for close friends or charity must explain these intentions in the will.
- A will can be important just to avoid unexpected surprises, as the intestate succession rules of some states do not seem logical to most clients.
- In most states, tangible personal property is not held jointly with rights of survivorship. This often makes a will essential for blended families in order to deal with virtually any family property.