05/25/2011 06:22 pm ET | Updated Jul 25, 2011

Have It Your Way: Prepare A Will

I have recently attended a number of funerals. After each funeral, the question often asked: "Did the deceased have a will?" It may not surprise you to know, the answer in most instances is "No." For most people, preparing a will is their first confrontation with the prospect of death. This is why they tend to procrastinate and die without one. Yet a will, thoughtfully prepared can probably alleviate the fear of death in that it enables you to provide for the welfare of loved ones after you have gone. Moreover, and it assures that whatever estate you leave behind will be distributed according to your intent. Finally, you can avoid having a large portion of your estate being used to cover legal expenses due to contests initiated by your heirs.

There are two ways you can die without a will. First, if you never wrote one. Second, if you wrote one but it's declared invalid by the probate court. In either case, you said to have died "intestate," that is without a valid will.

If you die intestate, your state has special laws, called the "laws of intestacy," that control the disposition of your property. ("Property" means not only your real property but all personal assets you own too, from automobiles and furniture to checking and savings accounts to stocks and bonds.) You should be aware that if you own property jointly with another individual(s) where the deed describes ownership as "tenants in common" the death of one of the individuals does not cause the property to automatically transfer to the share(s) of the remaining owner(s). Example: Andrew, Elizabeth and Kenneth own a piece of land. The deed describes them as "tenants in common." The deed states that Andrew's share is 40 percent, Elizabeth's share is 50 percent and Kenneth's is 10 percent. Andrew dies without a will. His 40 percent interest goes not to Elizabeth and Kenneth but to his heirs.

However, there are four types of assets to which these laws do not apply.

First: Life insurance and retirement plan proceeds. Whether you die with a will or without a will, life insurance proceeds and retirement account balances are paid to the beneficiary you named in the policy or retirement plan.

Second: Property owned jointly with one or more persons with a right of survivorship. Two of them avoid the intestacy laws.
a) Joint Tenancy. Where two or more persons own property as joint tenants with right of survivorship, when one owner dies, whether with or without a will, the deceased tenant's share goes automatically to the remaining joint tenant or is divided among the remaining joint tenants. Example: Husband, wife and daughter own title to their house as "joint tenants with right of survivorship." This title is recorded at the local recording office. Daughter dies. Husband and wife now own the house as "joint tenants with right of survivorship."
b) Tenants By Their Entirety. This is a joint tenancy only between a Husband and Wife. When one spouse dies, whether with or without a will, the other automatically gets the entire property.

Third: Property held in a living trust. Property held in a trust you set up while you are alive (a "living trust") is not subject to intestacy laws, and goes, upon your death, to the person you name in the trust. The trust alone controls where the trust property goes. This has been called, by some people, the most useful estate-planning tool available.

Fourth: Your spouse's one-half share of the community property you and your spouse own together. At present only eight states in America have the "community property" system. Those states are: California, Arizona, Washington, Idaho, Louisiana, Nevada, New Mexico, and Texas.

Any person over the age of majority (most states age 18) and of sound mind can make a will. The purpose of a will is to see that your property goes to those individuals, organizations or causes you want it to go to, rather than to those individuals the State says it goes to under the intestacy laws.

You may spare everyone in your family unnecessary worries by simply taking the time to make a will. Contact an attorney that specializes in estate planning. Addressing the disposition of your estate "upfront" is cheaper than having your heirs deal with it after your death.