Do I Need a Will If I Don't Have a lot of Money?

Do I Need a Will If I Don't Have a lot of Money?

Last updated: August 2010

The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on January 28, 2010.

Q: Do I need a will if I don’t have very much? I don’t own any real estate, and only have a little bit of money in the bank. People say I need a will, but I don’t think there’s enough to worry about.

A: You don’t have to have a will, but it helps if you do. A will makes your wishes clear, and makes it much easier for whoever handles your affairs after you die.

Most basically, a will selects who you want to handle things for you after you die, and tells them what you want done. Without a will, somebody must volunteer to take care of things, and then figure out what the law says about how those things get distributed.

The “things” that get distributed are whatever’s left over after your debts and burial expenses are paid, and whatever doesn’t pass automatically to others upon your death. For example, real estate, bank accounts, stocks, and cars can be held jointly so that they pass directly to designated survivors when you die. By passing automatically, they’re never part of your estate.

Without a will, whatever estate remains after paying debts and burial expenses gets divided into shares dictated by Illinois law. A spouse gets half, and the other half is divided evenly amongst any kids you have. If there’s no spouse or kids, the law goes back up the family tree looking for your parents, or siblings.

With a will, you could leave everything to your spouse, or to somebody else, or leave different shares. Your estate would be distributed according to your wishes, rather than the rules of intestate succession. (Intestate = without a will, or “testament.”)

If you die without a will, someone must volunteer to deal with your property. If there’s no land, and just personal property worth less than $100,000, they can use a Small Estate Affidavit, and don’t have to go to court. They’d be required to divide things up according those intestate succession rules.

That’s not necessarily hard, but it’s harder than if you had a will that said who’s supposed to handle things, and what they’re supposed to do.

For many people, knowing what’s supposed to happen because of their will provides valuable peace of mind.

If you have minor kids, a will can also name who you want to care for them if you die. That’s called nominating a guardian. Your choice doesn’t cancel the rights of a surviving parent, and isn’t automatically accepted if both parents are dead. It does, however, make it much easier for your choice to become guardian. It can help avoid a fight over who cares for your kids.

Parents with minor kids, then, have an especially good reason for doing a will.

The Illinois law on wills says: “Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by will the real and personal estate which he has at the time of his death.” They must be in writing, and witnessed by 2 people. Witnesses protect against forgeries and vouch for your sound mind and memory; they can’t inherit anything under the will.

Wills can be revoked, or modified, as much as you like before you die. You’re always free to change your mind.

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