A Last Will and Testament is the foundational document for most estate plans. Yet, many Americans do not have a will. This article will delve into the definition of a will, clear up some will-related confusion, review reasons people avoid getting the document, and explain how they can overcome those barriers.
In 1994, the suicide of Kurt Cobain, lead singer of the band Nirvana, was felt by music appreciators worldwide, and many still mourn the loss. In addition to the heart-breaking trauma his family, friends, and fans felt, his death had another consequence: a protracted 20-year battle over his estate because Cobain died without a will.
Stories of celebrities dying without a will are more common than you think. The musician Prince’s siblings fought over his estate for six years. NFL quarterback Steve McNair was murdered in 2009; with no will, his wife inherited his entire estate and proceeded to evict his mother from the home McNair gave her. Author Stieg Larsson’s estate was divided between his father and his brother, while his lifelong partner of 32 years received nothing except the house they shared. The list goes on and on.
It turns out celebrities are just like us. The 2023 Wills and Estate Planning Study found that two out of three Americans do not have a will (or any estate planning documents). So, let’s dive into why many Americans don’t have a will and how they can overcome these hurdles. We’ll start with a detailed Last Will and Testament definition.
What is a Last Will and Testament?
At the very least, you need to have a will if you want to control who receives your assets after you die. Most adults should have a will. As the celebrity cases illustrate, when someone dies without a will, the deceased person’s assets may not go to the people who should have and deserve them.
Legally referred to as a Last Will and Testament, a will is a written document that allows property and assets to pass to the people and institutions you want to provide for after your passing. The document is created while someone is alive and only valid once they die. To execute a valid will in Washington state, a person must be at least 18 years old and have the mental capacity to implement legal documents.
A will fulfills many vital roles, such as:
- Distributing assets to people, charities, organizations, etc., detailing who gets what and how much, including bank accounts, investments, and cherished possessions (any document with a designated beneficiary, such as life insurance policies, retirement accounts, and some financial assets, are not included in a will).
- Transferring property.
- Naming a personal representative who helps ensure the estate’s assets go to the designated places.
- Appointing a successor guardian to care for minor children (it is also possible to name someone to care for pets).
- Holding a testamentary trust, a specific type of trust that only comes into existence once someone dies.
The legal term for someone dying without a will is dying intestate. When this occurs, their assets enter a lengthy and frequently costly process known as intestate succession, where the state decides who receives assets that are not co-owned or have no named beneficiaries.
It is essential to note that even with a will, your assets must pass through another frequently lengthy and costly court process known as probate (there’s more info on probate below).
Frequently asked questions
There are many misconceptions and confusion surrounding wills. Here are some of the most frequently asked questions.
Why is it sometimes called a will and sometimes called a Last Will and Testament?
“Last Will and Testament” is the full legal term for the document (see below). We frequently refer to it as “will” because it’s shorter and easier to say (and type).
What is the difference between will and testament?
The case of will vs testament is more than a thousand years old and, ultimately, just an issue of vocabulary.
It’s impossible to pinpoint the creation of the first will, but wills are mentioned in the Old Testament, and the oldest example was discovered in an Egyptian pyramid from approximately 2500 BC. In ancient Greece and Rome, a last will was used to transfer property by people who did not have direct heirs (property owners with heirs didn’t need a will because their assets automatically passed to their offspring). The person who created the will was (and still is) known as a testator. The term “testament” referred to the actual transference of the property.
Ye olde English people continued the practice of creating a last will. It was a part of English common law in 1066 when the Normans invaded England. The invasion was led by William Duke of Normandy, known today as William the Conqueror; so, spoiler alert, he won. The Normans brought many cultural changes to the island, including adding the term “testament” to the phrase “last will.” So, if you ever feel annoyed by the term “Last Will and Testament,” you can blame William the Conqueror.
In 2021, the case of will vs testament obtained the highest recognition possible by becoming a “Jeopardy” clue. “After the Norman Conquest, lawyers made sure they were clear with ‘Last Will (an Anglo-Saxon word) &’ this French-derived term?” The contestant gave the correct answer of “Testament.”
What is a death will?
Truthfully, there is no death will definition. The phrase “death will” is a colloquial way of referring to a Last Will and Testament. Likely, the term derives from confusion with a “living will,” which is another way to refer to a health care directive.
What is a last living will and testament?
There is no legal document known as a last living will and testament. Similar to the term death will, this is likely a mashup of Last Will and Testament and living will.
What is probate?
In our article, “How to avoid probate court,” we discuss probate and ways to ensure that your beneficiaries skip the process.
However, in short(ish), probate is the legal process of transferring titles and assets out of the name of someone who passed away and into the name of their beneficiaries. During probate, the court appoints a personal representative with authority to manage the estate until it is transferred to the recipients, usually a family member or members. However, many families also need an attorney’s help to probate an estate.
In Washington state, assets typically take a year to pass through probate. In addition, the personal representative must obtain “letters testamentary” from the court, which sometimes takes weeks. Until receiving the letters testamentary, the personal representative has no authority to transfer money or pay bills.
Estates worth less than $100,000 usually do not need to go through probate court in Washington state. For estates valued over $100,000, one of the most effective ways to avoid probate court is to create a revocable living trust.
Why should I try to avoid probate?
Probate is a public process. So, when someone’s assets enter probate, they become part of the public record. If you’ve ever wondered how a celebrity’s net worth becomes general knowledge after they die, it’s because their assets hit probate. If you don’t want every nosey relative digging through your personal effects after you die, you want to avoid probate court.
Also, probate can cut into your beneficiaries’ inheritance because many families need the assistance of an attorney to probate an estate. The attorney and other probate fees are often much more expensive than creating a trust to avoid probate.
So, a Last Will and Testament seems pretty important; why don’t more people have one?
Well, that’s a tricky one to answer. While we can’t look into the hearts and minds of others to know their true thoughts and feelings, we do have the next best thing: a survey.
The 2023 Wills and Estate Planning Study questioned 2,483 adults ages 18 and over to discover their feelings regarding estate planning. The survey found that two-thirds of the respondents had no estate planning documents. These respondents had many reasons for not having a Last Will and Testament, including:
- Haven’t gotten around to it (42%)
- Not enough assets (35%)
- Don’t know how (15%)
- Too expensive (14%)
- No one to leave assets to (8%)
- Takes too long or too complicated (7%)
- Inflation or economic concerns (5%)
If one (or more) of those reasons hit close to home, let’s see if we can help you clear those investment planning hurdles.
Haven’t gotten around to it
This is the eighth year of the Wills and Estate Planning Study, and procrastination is consistently the number one reason people give for not having a will.
We understand completely. Everyone is busy, but we find time to fit in many important things (often things we would rather avoid). However, frequently, there is an unspoken reason behind this specific procrastination. Creating a will and other estate planning documents also means facing one of the more uncomfortable things about life: that it ends.
No one wants to spend a lot of time thinking about death, especially their own. It’s much easier to turn on “The Real Housewives of Kuala Lumpur” and drown out those thoughts. However, everything dies, including the author of this piece (whoa, momentary existential crisis).
However, by ignoring estate planning, we also ignore the difficulties we create for our family and loved ones when they are already dealing with a loss.
Fortunately, estate planning does not need to be a complicated, time-consuming process. For example, at Harbor Law Firm, we make your estate planning as easy as possible. We provide convenient, online forms that you can complete at your leisure, you can sign forms remotely avoiding unnecessary trips to the office, and we’re always available to answer any questions.
Speaking of making things easier for your loved ones, when you finally do get around to estate planning, there are at least three other documents you need to create in addition to a Last Will and Testament:
- Health Care Power of Attorney—assigns someone you choose to make healthcare decisions if you are temporally unable to do so.
- General Durable Power of Attorney—assigns someone to make financial decisions when you temporally cannot do so, such as pay bills and manage bank accounts.
- Health Care Directive (living will)—informs health care professionals whether you want artificial nutrition and hydration if you are permanently unconscious or terminal.
Not enough assets
The second most common response was “not enough assets.”
There tends to be some confusion when people hear the term “estate planning.” The word estate suggests a giant manor with sprawling grounds. However, an estate is just the stuff you own. Do you own a house, a car, or a bank account? If so, you have enough assets to create at least a Last Will and Testament.
Without a will, the state decides who gets your assets after you die. In Washington state, the inheritance hierarchy is the:
- Surviving spouse or state-registered domestic partner. The spouse or partner will receive the following share of the estate:
- Their portion of the community estate.
- One-half of the remaining estate if the deceased is “survived by issue.” (Whaaaaat? We know; see below.)
- Three-quarters of the remaining estate if there is no “surviving issue” (we know…), but the deceased has living parents or siblings.
- The entire estate if the above issues are not applicable.
- Issue of the deceased, meaning the direct descendants and legally adopted children of the deceased.
- Child or children are emotionally weighted terms that can have different meanings from family to family. The variety in these definitions can also cause complications and delays in an intestate inheritance court case. To ward off potential disruptions, the legal profession has embraced the (extremely) impersonal and antiseptic term “issue” to mean the direct descendants and legally adopted children of the deceased (as opposed to foster children, children conceived by the deceased but adopted by another family, etc.).
- Parent or parents.
- Siblings (or, accurately, the issue of the deceased’s parents).
- Grandparent or grandparents (if the deceased is survived by both maternal and paternal grandparents, the estate is evenly split).
- Issue of the grandparents, divided by groups and split according to representation.
- For example, the deceased has a surviving uncle descended from his maternal grandmother and three surviving nieces descended from his paternal grandmother.
- Half of the estate goes to the surviving uncle.
- Half of the estate is divided evenly between the three surviving nieces.
If no relatives are found, the assets are escheated, meaning the state claims them.
Don’t know how
The solution to this one is easy: reach out to us. Harbor Law Firm makes your estate planning process as simple and stress-free as possible.
We understand. Lawyer fees can add up. That’s why Harbor Law Firm offers flat-rate pricing. So, you’ll never be surprised by a legal bill from us.
Also, remember that estates worth less than $100,000 usually do not need to be probated in Washington state. Those estates typically do not require extensive estate planning, which makes the process more affordable.
No one to leave assets to
There is always someone or an institution who could benefit from your assets. Do you care about a specific cause? Is there a charity you support? Do you like to visit a park near your home?
Remember the inheritance hierarchy. If you have no relatives, the state can claim your assets.
We can help you create an estate plan so a charity or something else you care about benefits from your remaining assets after you pass away.
Takes too long or too complicated
Creating an estate plan is easier than doing taxes, and you do those every year.
Please reach out to Harbor Law Firm, and we’ll show you how we make the estate planning process simple and uncomplicated.
Inflation or economic concerns
It’s interesting that 5% of respondents gave this answer as a reason for not making an estate plan because many people in the survey said that “inflation and economic concerns” encouraged them to finally created an estate plan.
If you’re worried about an uncertain economy, planning is one of the best ways to put your mind at ease.
We make the estate planning process as simple and stress-free as possible. Along the way, we’ll elaborate on the last will meaning and answer questions like “What is a last will?” and “What is the difference between a living trust vs will?”
Our services include the following:
- Knowledgeable guidance customized to your specific circumstances and goals.
- A fully remote process that never requires you to leave home.
- Hours to fit your schedule.
- An adaptable process for exchanging documents and collaborating.
- Flat-rate pricing, so you’ll never be surprised by a legal bill.
We also offer a free consultation and can speak with you outside regular business hours. For more on our remote estate planning process, visit this page.
Our proven process defines precisely what you can expect, and our focus is always on your goals. Please fill out this form to schedule your free consultation.