Have the will to make a will for loved ones

Photo by 123RF
Photo by 123RF

Have the will to make a will for loved ones

by LCDR Mathew H. Bagioli, JAGC, USN
Region Legal Service Office Western Pacific

“The Last Will and Testament of….” The words conjure up movie scenes in dark rooms lit by crackling fireplaces with rattling storm shutters that begins the hero or villain on a journey. However, a will is usually far less dramatic. A will is a just a legal document that lets loved ones, friends, and financial institutions know your wishes about your wealth and property (the estate). Without a will, your estate is governed solely by state law. During this autumn season of pumpkins and harvests, it is worth taking a moment to consider what we have each gathered in our lives, and what we can do to take care of our loved ones after we are gone.

Do you need a will? Yes. If you are married, have been married, have children (biological or adopted), pets, or considerable assets, you should have a will. Or, if you are dissatisfied with the prospect of dying intestate, then you need a will. Even absent these circumstances, a will is the only sure way to make sure your wishes have legal weight behind them.  

The laws and regulation that govern the transfer of property after death are arcane, full of words otherwise never used in common American English. Your estate is the whole collection of your wealth and property, some of which may pass through the probate process. Probate is the legal status where your estate is gathered, held, divided, and finally transferred by a court. If you should die without a will, then you have died intestate.

Generally, if you die intestate, the state where your property is will seize and then transfer the property.  After creditors are paid, the estate is transferred first to your spouse, if any, followed by your children, and then your parents. If there are none found, then the estate passes to siblings, then grandparents, aunts and uncles, etc. If the state cannot find anyone to receive your property, it will finally pass to the state. State laws of intestacy, however, sometimes vary wildly from state to state.

In Maryland, for example, if a decedent (the person who dies) leaves behind a spouse and parents but no children, the estate is divided with the spouse inheriting the first $15,000 worth of assets and property. The remainder is split 50/50 with the decedent’s parents. In Texas, a surviving spouse will inherent all the property amassed during the marriage but only a portion of the decedent’s property owned from before the marriage or otherwise inherited. How the estate is divided is sometimes a very long and expensive legal battle. Some states, like Colorado, Georgia, and Alabama, allow small estates to skip the probate process entirely and settle the matter through simple court filings. These are the exception, rather than rule, and often require no creditors and agreement from any potential beneficiaries. These questions and burdens for loved ones are more easily resolved if the decedent has a will.

Additionally, the question of which state will have the power to decide your estate is potentially problematic. The state where you were domiciled usually has jurisdiction, but for service members who live all over the world – Virginia, Florida, California, Washington, D.C., Japan, etc., the issue can become more complicated. Domicile is a legal status that may be disputed before it is decided. Service members may die in a state that is not their registered home of record, and that state may ultimately probate their estate because that is where the member’s assets and property are located. Without a will, this is another complicating factor. With a will, you declare which state’s laws you prefer to govern the probate process, regardless of the jurisdiction that presides over the matter.

“But I don’t have anything!” Many people, especially young and fit people in their 20s, think a will is unnecessary admin hassle, because they simply do not have a large estate. That may be true. Moreover, many assets do not pass through the probate process, like SGLI and property or accounts held jointly. Still, however little you think you have, you likely have more. If you own it, it is probably worth something. Do you have an investment portfolio, or an XBOX account with a GOAT ranked Call of Duty juggernaut, or a level 119 troll druid in WOW? Have you created a perfect build of Fleet Activities Yokosuka in Minecraft? Do you have 10k followers on IG? If you have spent time and money on it, it has value. You may not even care who gets your stuff, but the people you leave behind certainly will. They will have to guess your intentions when deciding to whom your property is distributed.  A will is the legally operative way to ensure your cousin gets the dusty Warcraft character, but does not ever touch your CoD.

“What else? Can’t I just write my will on a cocktail napkin, or something?” Handwritten wills are allowed in some states, but not others.  New York for example expressly forbids handwritten wills – they must be drafted by an attorney and executed in the presence of witnesses.  Even in states that do allow them, they may be disputed and subject to a long legal process.  Estate planning is complicated and needs solid legal advice.  There are lots of rumors and false information put out on the internet and by well-meaning family members.  Your estate should have a better plan than a sub-Reddit post; you need a lawyer.

Having a will is a good thing and means one less thing to worry about. Wills and other estate planning documents, including advanced health care directives, living wills, and powers of attorney, can be drafted and executed by the team of JAGs in the Legal Assistance department of Region Legal Service Office Western Pacific (RLSO WESTPAC) on the second deck of the PSD building onboard CFAY, building 1555. The only way we can help is if you come and see us and tell us about your life.  Appointments may be made over the phone at DSN: 315-243-8901 or by email at yokosukalegalassistance@fe.navy.mil.  We are also in Sasebo at DSN: 315-252-3347 and sasebolegalassistance@fe.navy.mil.

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