MSU Extension: Why Have a Will?

While writing a will is not number one on everyone’s to-do list, there are valid reasons for doing so. “People often avoid thinking about wills because a writing one means a they have to deal with attitudes and feelings about death, property ownership, business arrangements, marriage and family relationships that they or other family members may not be ready to think about,” says Marsha Goetting, MSU Extension Family Economics Specialist.

People who have experienced the death of a family member agree it is worth investing time and money to avoid the confusion, delay, expense, and quarreling that sometimes occurs in families when an individual dies without a written will.

“Most people, when they stop and think about it, would like to have a say about what happens to property that they have worked hard to accumulate,” says Kaleena Miller, MSU Extension Madison-Jefferson County Agent.

A will is a tool that provides control for the maker. If you don’t write a will, state law mandates what happens to your real and personal property upon your death. First, accept the fact that you are going to die someday. It’s not a question if you will die, but when.

Goetting suggests you ask yourself: If I should die today:

• What would happen to the property I’ve worked so hard to accumulate?

• Who would care for my minor children or aging parents?

• Would my spouse and children be provided for in a fair manner?

• Would the family business continue?

• Would the personal representative assigned to settle my estate have my family’s interests and needs in mind?

By making a will, people can decide for themselves who receives their property, how much each beneficiary receives, when they will own the property, and, to some degree, what they can do with it. In the absence of a will, the Montana legislature has decided how your property is distributed. A will only becomes binding upon death after being validated by a district court.

Goetting said there are different ways people can write will. One is a “holographic” will, one that an individual can create themselves in their own handwriting. Such a will can be valid if the signature and the material provisions are in the handwriting of the testator, the legal term for a person whose will is being written. Self-made wills, however, often increase costs and trouble for heirs, cautioned Goetting. The validity of a handwritten will can be questioned due to errors and legal interpretation that conflicts with the testator’s intentions.

The second way to have a will written is to have an attorney do it. “ In most cases, an attorney can advise and assist you in drafting a will that best suits your needs,” Miller said. “You want an adviser to avoid the legal pitfalls that can result from a ‘do-it-yourself’ will from a computer software program sold on the web,” said Goetting Avoid relying on the advice of untrained relatives or friends who are not current on Montana laws about wills.

Attorney fees for making a will vary, depending on the size of the estate and the complexity of the will itself. Goetting urges people to always ask an attorney for an estimate of the cost, preferably at the first meeting.

An attorney can make a will “self-proved.” That means a statement is added noting that the testator and witnesses signed and acknowledged the document as genuine. That way, when the will is submitted for probate, witnesses do not have to be present to testify whether the testator was of sound mind when the will was signed.

Goetting recommends storing a will in a safe place, such as with a bank, trust company or the attorney who drafted it. “You can also store you will with the district court,” said Miller. The testator, or a person they have authorized, can pick up the will for the purposes of changing or destroying it. Miller said careful consideration should be given to storing wills in a jointly owned safe deposit box since multiple people would have access.

Goetting noted that a will may not control all a person’s property. If the property is owned by two or more people in joint tenancy with “right of survivorship,” after one owner dies it will be owned by the survivor or survivors — even if the will says otherwise. Proceeds from assets where a beneficiary is named — such as insurance policies; pension funds; U.S. savings bonds; payable-on-death financial accounts; transfer-on-death registrations on stocks, bonds, and mutual funds; and transfer-on-death deeds on real property — also cannot be controlled by a will. 

“A will is a written plan to make sure your property and assets are distributed the way you want after your death,” Goetting said. “Your will is the blueprint that guides the district court in the distribution of your estate. Write one now before it’s too late.”

Miller said a paper copy of the MSU Extension MontGuide about wills may be requested from our Madison-Jefferson County Extension office at 287-3282. A PDF is available for downloading at http://store.msuextension.org/publications/FamilyFinancialManagement/MT198906HR.pdf. Another MontGuide provides information about selecting an attorney to develop an estate plan or settle an estate https://store.msuextension.org/publications/FamilyFinancialManagement/MT202107HR.pdf.