Do I Need A Will?

We get asked this question all the time.  The surprising answer from an attorney that prepares wills every day is “maybe you do not need a will.”  We actually now have clients sign the following form when they sign their wills.

ACKNOWLEDGEMENTS ABOUT THE LIMITATIONS OF MY LAST WILL AND TESTAMENT

I understand that the provisions of the will I am signing at this time will not alter, affect, or otherwise change the disposition of any property that is disposed of at my death under:

  • Any POD (payable on death) beneficiary agreement made by me with respect to a bank account or other tangible or intangible personal property owned by me;
  • Any TOD (transfer on death) beneficiary agreement made by me with respect to a brokerage account or other tangible or intangible personal property owned by me;
  • Any TOD (transfer on death) deed made by me with respect to real estate owned by me;
  • Any real or personal property owned by me at my death as a joint or tenant by the entirety with any individual who survives me;
  • Any property owned by a revocable or irrevocable trust created by me;
  • Any life insurance policy, annuity contract, or other contract calling for the payment of benefits (other than to my estate) by reason of my death; or
  • Any IRA, 401(k), or other retirement plan of which I have the right to designate a beneficiary.

A will only operates on property you own in your own name at the time of death.  When a spouse dies, the surviving spouse usually receives all of his or her property by joint ownership or by being named the beneficiary of life insurance, retirement plans, annuities, etc.  When the second spouse dies, there can be beneficiary designations for all items of property, so a will may not be needed.

Indiana permits up to $50,000 of property, real or personal, to be transferred by a small estate affidavit 45 days after date of death.  Folks with less than $50,000 of property usually do not need a will in Indiana.

There are some situations where a will is needed for children with special needs, fear of a divorce, naming a guardian, etc.  We would be glad to discuss this with you.

You do need a power of attorney for business and a power of attorney or appointment of a health care representative to make health care decisions for you if you are not competent.

Respectfully Submitted,
Keith P. Huffman
February 2016

Categories: Article and Elder Law.