THE BLOG
03/06/2012 09:52 am ET Updated May 06, 2012

Don't Let the Government Write Your Will

As the presidential election heats up, we can expect an even more robust exchange over the appropriate role of government in our lives. We may well disagree on exactly where to draw the line, but we can all probably agree that we don't want our state of residence preparing our last will and testament.

Yet, this is exactly what will happen if you are among the estimated 50 percent of American adults without a will. Should you die without a will, your state's intestate (default) laws have a will ready for you. You may or may not like it.

The function of state intestate laws is to distribute a decedent's assets as the state government imagines the average person would want. In most states, this means half to spouse and half to kids -- period. Having delivered this default scenario to countless grieving survivors, I can tell you that it very often misses the mark.

What if you are in a non-traditional relationship -- and/or your state has not yet adopted marriage equality? In this case, intestate law would give everything to your parents. You owe your significant other the protection of a properly drafted will.

What about your minor children? Do you really want a court deciding who should raise them? This can turn into an agonizing legal circus funded by your estate assets. It is, ironically, this gut-wrenching decision that causes many of my clients to put off executing a will. As a parent, I can empathize with the angst that this decision-making process evokes. Truth be told, this decision caused me to delay executing my will by about one year. I couldn't get past the image of Debra Winger's tearful goodbye to her small children in Terms of Endearment. As it stands, I am still not 100 percent comfortable with the guardian I named in my will. I rationalized, however, that a "B+" candidate was better than a self-important judge overseeing a squabble amongst my wacky relatives.

Once you have made the decision to protect your loved ones with a will you may ask if you can do it yourself. I promise that it is not out of a desire to protect my profession's turf that I recommend you have an attorney supervise the will's execution. Without an attorney, it is easy to run afoul of the many archaic and hyper-specific state-by-state requirements. That said, a self-made will is better than nothing. It can also serve as a worksheet prior to your meeting with an attorney. For a free downloadable will, go to www.myelderlawattorney.com.

Sign up for our email.
Find out how much you really know about the state of the nation.