As 2022 comes to a close, take a moment to remember the big things. For instance, that we are all going to die someday.
Statistics tell us that “someday” is a lot closer than many of us imagine. The United States just suffered the biggest two-year decline in life expectancy since the early 1920s. We Americans can now only look forward to about 76.1 years from birth — which puts life expectancy at its lowest level since 1996 (this was so long ago that we had only that year completed taking the lead out of gasoline).
That’s a bit depressing for those of us who can see our standard 76.1-year allotment approaching through the clouded foresight of our lead-addled brains. Still, there’s no use crying about it, and fortunately those who have experienced decades of life also seem to be most ready for facing the challenge of death.
So, how best to prepare? I tend to observe that probate litigation — a dead person’s survivors (frequently siblings, the dead person’s adult children) suing each other over the decedent’s stuff — really ramps up after the holidays.
You hear lamentations from some lawyers whenever a big-time celebrity dies without a will, as though it is utterly insane not to have a will. It might make sense for extremely wealthy people to make an estate plan, especially to cheat Uncle Sam out of what they would otherwise be paying in taxes.
But your estate probably isn’t going to owe the feds anything when you die anyway. In a typical year, not even one out of every thousand dead Americans leaves enough behind to ultimately incur any federal tax liabilities. Unless you plan on dying next year with more than $12.92 million (it’s indexed for inflation), you probably don’t have to worry much about taxes.
Wills are often sold to less well-heeled Americans as a way to prevent fighting among heirs. Not to start a feud with the estate planners of the world; I’m sure there are many cases in which, for instance, a detailed schedule of who gets what treasured personal property has prevented conflict.
Even so, someone who sells estate plans is likely to think you should buy an estate plan. Someone paid to fight over estate plans might develop a different perspective.
For a party determined to fight, far from being a deterrent, wills and trusts can actually create more outlets for conflict. No will or trust is so airtight that any moderately scrupled litigator can’t challenge semi-ambiguous language somewhere in it without fear of sanctions. The English language (and especially the legal jargon version of it) is not precise enough to tie down every possible ambiguity.
Then there’s the creation of the document itself. Did you have the capacity to execute your will, or had the mental decline caused by a childhood of inhaling leaded gasoline fumes finally caught up with you? Or were you unduly influenced by greedy family members strong-arming you throughout the estate planning process?
I suppose you could get examined by a neurologist the day of the will signing and staple your clean bill of health to the damn thing while you signed it in front of your witnesses from within a secure bunker. But most people do not go to such lengths, and short of them, it’s hard to head off a determined challenge based on some perceived mental frailty. Hell, I lost my pocket knife two weeks ago, and I still can’t think of anywhere it could be other than in my pocket or on the floor that was directly beneath my pocket.
But while challenges to wills and trusts and other fancy legal documents are common, you know what is unusual in run-of-the-mill probate litigation outside the world of celebrities and surprise offspring? A big lawsuit between heirs when the deceased left no estate plan whatsoever.
Sure, partly this is because there is often less to fight about tangibly — you’re more likely to leave assets when you die if you can afford to pay for a will. But it’s also because there aren’t a lot of legal arguments to fuel a lawsuit about someone who dies without a will. In that case we know where everything is supposed to go based on a standardized default.
For people without a will — and that’s about two-thirds of us, according to one recent survey — their estates pass to their heirs according to their state’s laws of intestate succession. Your state’s laws might vary from those where I am licensed, and always check with your own lawyer because this is not legal advice, etc. That being said, probably if you die without any estate plan, your net worth will likely go to your spouse, your children, or, if you did not have a spouse or children when you died, to your next closest relatives in specific proportions, spelled out in statute, that are difficult to fight about. Which is what most people want anyway.
If having a will drafted gives you some kind of comfort or security in believing your assets will be disposed of as you wish after you die, go for it. There are certainly situations that call for estate planning.
On the other hand, if you’d rather not think too much about your own demise, congratulations, that might be very prudent too. I can assure you that having professionally drafted wills and trusts in place well in advance hasn’t prevented a great many probate lawsuits from crossing my desk over the years. Never dealt with a lawsuit involving someone who died without a will though.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at email@example.com.