Do I need a Will? (part 1)

One of the most frequently asked questions that I receive from clients is whether they need a Will or estate plan. Typically, they will ask the question, then recite three or four reasons why they don't think they need a Will in an attempt to push me away from an affirmative response: "I'm only [insert relatively low number] years old," "I'm not married," "We don't have any kids yet," "I don't have that many assets anyway." The simplest lawyerly answer to their question, of course, is: "it depends."

The state of Nebraska has already drafted an estate plan for you. It is referred to as "intestacy." When an individual dies without an Will in place, their property passes pursuant to the intestacy statutes.

In Nebraska, if the decedent is unmarried, the intestacy statues provide that his or her property will pass first to his or her issue (children, grandchildren, great-grandchildren, etc.). If the decedent leaves no issue, the property will pass to his or her parents. If they are not living, the property will pass to his or her siblings. If none, the property will pass to his or her nieces/nephews. If none, the property will pass to his or her grandparents. If none, the property will pass to his or her aunts and uncles. And so on and so forth. You may notice a pattern - look up one generation (e.g. parents), then follow that family tree down (e.g. siblings, nieces/nephews), then look up an additional generation (e.g. grandparents), then follow that family tree down (e.g. aunts/uncles, first cousins, first cousins once removed), etc.

However, if the decedent is married, the Nebraska intestacy statutes get a bit complicated. If the decedent leaves no issue or parents, the surviving spouse gets the entire intestate estate. If the decedent leaves no issue, but at least one parent is surviving, the surviving spouse gets the first $100,000 and one-half of the balance of the intestate estate. If the decedent leaves issue, who are also the issue of the surviving spouse, the surviving spouse gets the first $100,000 and one-half of the balance of the intestate estate. If the decedent leaves issue, at least one of which is not the issue of the surviving spouse, the surviving spouse receives one-half of the intestate estate.

Whew....

A review of the intestate succession discussed above is the first step to determining whether it is time to take the estate planning plunge. If this is not how you would like your property being distributed upon your death, the answer to the original question is "yes." Setting forth the exact manner in which you would like you property distributed upon your death is the most obvious advantage of preparing an estate plan.