Creating a will is one of the most procrastinated legal events for the average American. Most believe that they only need a will after they retire and death by old age seems imminent; however, in most cases this is a myopic assumption. If you have pets, children, own property (real estate, personal items, financial assets), and/or have concerns or reservations about how and to whom your property is being distributed, you need a will—no matter what age you are ( as long as you are at least 18). As more and more families experience divorce at some point, obtaining a will is especially important for ensuring the people you want to have your property get it.
If you do not have a will the State of Indiana has laws about to whom and how your property gets distributed and who gets to decide that—for example, if you have a family heirloom that has been passed down through generations to the eldest daughter in your family and you would like to do the same, if you do not have a will, you do not have a say in how anything gets distributed. However, a will affords you the opportunity to nominate personal representatives you trust to carry out your intentions of property distribution as memorialized in the will.
That said, a will can be more than just a document which dictates how an item of personal property gets passed along. There are many types of legal tools which can be contained in a will. That is, a will can be, and is often, more than just what is called a simple will—simply stating what property goes to what heir.
The State of Indiana permits testamentary trusts, for example. By way of background a trust is a legal entity which is governed by a trustee (person in charge of the trust) who manages and distributes property of the trust. Unlike a will, a trust permits the settlor (person making the trust) to place significant restrictions on the distribution of the res, or property, of the trust. For example, as a settlor you may place $50,000 in trust to be distributed to your son upon the age of 18 only to be used for college tuition. Under a will if you were to die and you had $50,000 which you wanted to leave to your son, the property would be distributed at the time of death. A testamentary trust is a trust that is created in your will which springs into existence the moment you die. There are other types of trusts and many types of restrictions and instructions on how property gets distributed through a trust. Often a trust is an effective tool for estate planning to save money and shelter it from certain taxes.
Obtaining a will can be as simple as having a document drawn up by an attorney which states who gets what property you own or as complex as you want to make it with testamentary trusts and other types of distributions. A will is an invaluable legal resource to help create certainty and remove emotion from an otherwise tumultuous time when it is actually needed.
As referenced above, if you have children, own and property (real estate, personal items, financial assets), and/or have concerns or reservations about how and to whom your property is being distributed, you need a will and the best time to do it is now. You can always change your will. The best time to change a will is anytime there is a new legal event in your life: getting married, getting divorced, having a child, adopting a child, obtaining new property, selling property etc. Often these changes are quick and easy to make.
While this article is not intended in any way to provide any specific legal advice, Attorney Nicholas A. Podlaski of Beers, Mallers, Backs, & Salin LLP 110 W. Berry Street, Suite 1100 Fort Wayne, IN 46802 would be happy to meet with you to discuss any will or trust drafting. Beers Mallers is recognized as one of northern Indiana’s preeminent elder law firms, with over 350 years of combined legal experience.