Consider this hypothetical scenario. You were raised by a non biological parent from the time you were a child. You called them “Mom,” and you always introduced yourselves as mother and daughter. She dies without a Will, and her biological relatives petition to take over her estate. The Court rules that because you weren’t legally adopted, you don’t have a right to her property. As a result, you’re left with nothing and are shut from being a part of her legacy.
This may be a hypothetical, but is a very real scenario that happens to many Americans. “The Problem With Wills,” a recent article published in The Atlantic magazine, reveals the plight of nontraditional families when it comes to Wills and intestacy laws.
Trust & Will further explores the current status of estate planning and intestacy laws that are creating an undeniable disparity between traditional and non-traditional families, as well as privileged and historically marginalized families. Existing and possible solutions are discussed.
The problem with intestacy & probate laws
Current intestacy laws, which determine what should happen to property should a person die without a Will, were designed in the 1950’s. This was a time when the traditional nuclear family was the standard, and laws that dictate who should inherit property used to be relatively straightforward.
However, the traditional family model is on the decline. According to the Pew Research Center, less than half of American children live in what is considered a ‘traditional’ family home. Today, many families are mixed, involving divorced or remarried parents, stepchildren, foster children, and non biological children who aren’t formally adopted. There’s also an increasing proportion of romantic couples who live together but don’t marry.
According to the Atlantic, nontraditional families that don’t set up Wills can be thrust into “legal limbo.” When a person dies intestate (without a Will), the probate court uses state intestacy laws to determine who is the next-of-kin that should inherit the deceased person’s property. In today’s world, these next-of-kin rules don’t necessarily help families achieve the desired outcome.
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For instance, let’s say that a divorced man with a biological child remarries. He dies before he got around to writing a Will. Per most state intestacy laws, his estate would pass to his surviving wife. The child (the stepchild of the surviving wife) may get very little, if anything. They may get written out of the family legacy completely if the surviving wife later remarries and passes away. If the father would have liked to pass a part of his estate to his child, then he would have needed to leave explicit instructions in a Will.
Without a Will, nontraditional families are at greater risk of being impacted negatively by intestacy laws. This begs the question, why not just create a Will?
The disparity with wills
Intestacy laws are designed to be used as a fail-safe, a backup. In the absence of a Will, these laws help determine a next-of-kin relative who shall inherit a deceased person’s property and assets. However, this often doesn’t lead to the desired outcome. This begs the question: why not simply create a Will?
Less than half of Americans have a Will in place. People who earn more than $100,000 per year are twice as likely to create a Will. Further, a recent study found that the majority of people who die with a Will are white. Only 27 percent of Black Americans have a Will, which translates to a much smaller proportion of all Wills created in America.
This collection of data suggests that the answer is not so simple. Historically, privileged families are more likely to put an Estate Plan into place. These families perceive that they have more to lose, and thus feel more incentivized to put Wills and Trusts into place. Further, working with an estate planning attorney can cost hundreds if not thousands of dollars.
In contrast, less privileged families don’t share this perception. They can’t afford an estate planning attorney, and further, they don’t bother with an Estate Plan because they don’t feel that they have anything worth protecting.
This is where education and access can help address this disparity. For instance, the Atlantic article suggests that some families won’t put a Will into place because of the availability of instruments to pass down property, such as transfer-on-death deeds or beneficiary designations.
In reality, it’s highly unlikely that the only thing a person owns is a house or a retirement plan, for instance. Even if the house were the decedent’s only high-value asset, they still have the contents of the home or sentimental belongings that have gone unaddressed. Further, beneficiary designations can fail or go stale, which is when the desired beneficiary passes away. The account may get absorbed into the decedent’s estate based on the financial institution’s policy. This defeats the intention behind the beneficiary designation. Having an Estate Plan in place is the ultimate safeguard for when things go wrong.
Further, many individuals believe that estate planning is solely for passing down assets and property. If they feel that they don’t have anything of value, this creates a great excuse for procrastination. What they don’t know is that a Will is dynamic and offers many important functions that have nothing to do with asset distribution. It allows you to designate a guardian for your children or pets, for one. It also allows you to specify your medical preferences and your end-of-life planning. These are important aspects that necessitates an Estate Plan for nearly anyone, regardless of income or status.
Last but not least, estate planning doesn’t have to be costly. Although working directly with an estate planning attorney may be recommended in certain cases, the majority of Americans can create their Will affordably. Some states will even validate a holographic Will, which is a handwritten will with no witnessing or notarization. (Trust & Will does not recommend this, which we will discuss shortly.) Otherwise, most people can access online templates and forms, or use an affordable estate planning service.
However, these advantages of estate planning often go unnoticed due to the lack of education and guidance.
Proposed solutions
The Atlantic article argues that there is a problem with Wills in America. Although this is certainly true, the problem lies more with the application of estate planning laws and the lack of access and education. These issues create a disparity in which historically privileged groups continue to take advantage of estate planning and its benefits while less privileged groups and nontraditional families do not. This creates a deeper issue in which the individuals who need estate planning the most are not aware of it and are at risk of dying without a Will. Trust & Will proposes several solutions.
Increased accessibility that includes education & guidance
Scholars and lawmakers have proposed numerous measures that will help increase accessibility to end-of-life planning. Simply making them widely available may help encourage Americans to take action. For instance, one idea cited by the Atlantic was the attaching of estate-planning forms to state tax returns.
Anyone can download a Will form or template off the internet right now. However, the problem is that they don’t know what to do with it, or how they can use it to their own advantage without the help of an attorney. This is the juncture at which these efforts can fizzle.
Trust & Will argues that plans to improve accessibility won’t work if they are not accompanied with an education and guidance component. Many of these solutions are a great first step, but stop at being an ideal solution for an idealized world if they don’t address practical problems.
Improve the accessibility of safeguards
11 states currently recognize the validity of holographic Wills, which are hand-written Wills that do not require witnesses, an attorney, or notarization. The Atlantic article cites cases in which even a note scrawled on a tractor, an unsent text message, and a typed note on a smartphone application were accepted as valid Wills.
Although the acceptance of holographic Wills is certainly a measure of improving accessibility, it has shortcomings. For instance, handwritten wills can easily lead to misinterpretation or confusion. Further, they run the risk of going undiscovered or getting destroyed. Although the validity of a handwritten note or unsent text message may be helpful in the case of an emergency, the policy does not ensure the efficacy of Wills. It also detracts from efforts to encourage Americans to put together well thought-out, secure Estate Plans that are verified to achieve their desired outcomes.
Instead of removing safeguards completely, what we should be doing is improving their accessibility. For instance, the reason why witnessing is required in most states is to make sure that the Testator was in the right mental state or capacity at the time of signing, and to ensure that they were not subject to undue influence.
Although notarization isn’t typically required, it is strongly recommended. It makes your Will self-proving, meaning that the probate court can proceed without having to contact or validate your witness signatures. This can significantly speed up the probate process. However, getting your documents notarized is time-consuming and can be difficult.
Instead of removing the requirement for witnesses completely, what more states can do is recognize the validity of remote witnessing and e-notarization. By allowing Americans to complete their Will online from end-to-end, the process of putting a plan into place can become much more convenient and thus more accessible and feasible.
Affordability
Last but not least, many Americans drag their feet on creating an Estate Plan because of the perceived expense. Working with an estate planning attorney can certainly cost hundreds if not thousands of dollars, which is an expense that not every American can spare.
On the other hand, affordable Will templates and forms are not necessarily a great solution either. Without education and guidance, the average person won’t know what to do with the form, or won’t feel sure that they’re using it correctly for their intended outcome. Thus, they can get stuck between two options that don’t suit them.
What Americans really need is a solution that merges accessibility and affordability with education. This is precisely the problem that Trust & Will set out to solve.
The key issue that the Atlantic article highlighted is that intestacy laws will not necessarily help a family achieve their desired outcomes. These laws, sometimes called intestate succession laws, were designed in the 1950’s, a time when the traditional nuclear family was the norm. Today, the traditional family is not the norm. The modern family is very mixed, including multiple generations of caretakers, divorce, remarriage, stepchildren, foster children, and non biological children. If you do not have a Will, intestacy laws will pass your property to your “next-of-kin.” However, in today’s world of modern and nontraditional families, this often won’t reflect what you would have wanted.
Intestacy laws don’t properly recognize the people you love that may not necessarily fit on paper. This is precisely why everyone needs an Estate Plan, such that they can specify exactly how they’d like to pass their property, and to whom. Further, an Estate Plan can address other important aspects of family and end-of-life planning, such as specifying your medical decisions or designating a guardian for your children and pets. It doesn’t always have to be about money, although you may be surprised at the value of your belongings and property when they become sentimental for your loved ones.
The good news here is, estate planning is accessible and affordable, if you know where to look.
Trust & Will is an online estate planning solution that meets every family where they are. We provide a platform that offers estate planning solutions that are not only affordable, they are easy to complete. We help Americans set up Estate Plans that meet their unique needs, regardless of their intent, income level or background. Most importantly, we offer extensive education, guidance and support so that no one has to go through the process in the dark. Check out our Learn Center, which offers an extensive library of free educational articles on nearly any estate planning topic you can think of. If you’re interested in finding more about what it would be like to create your Estate Plan through Trust & Will, find out how to get started today.
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