Why Americans delay writing a will
For many of us, drafting a will feels like an exercise in pessimism — an admission that something will, eventually, go wrong. Religious and cultural reluctance to discuss death plays a part. So does the assumption that "the family will sort it out". The unfortunate truth is that the family rarely does, and when they don't, the law steps in with a one-size-fits-all answer that almost never matches what the deceased actually wanted.
What happens when there is no will
Where a person dies intestate (without a will), succession is governed by the intestacy statutes of the state in which the deceased resided. Each state prescribes a fixed list of legal heirs and shares — typically a surviving spouse receives a portion, with the remainder divided among children and, if there are no children, parents or siblings.
What this means in practice is rigid and often unfair:
- A long-time friend, an unmarried partner or a charity will receive nothing.
- A spouse may receive only a fractional share, with the rest divided amongst children and parents in proportions the deceased may have strongly disagreed with.
- Self-acquired assets pass under the same fixed scheme as inherited property — even though the deceased had every right to direct otherwise.
- The family is forced to open a probate proceeding, a process that can take 12 to 24 months and is needlessly expensive.
What a will can do
A properly drafted will is a remarkably flexible instrument. It can:
- Direct who inherits which asset, in what share, and on what conditions.
- Provide for children with special needs, dependent parents, or staff who served the family long.
- Appoint an executor — the person who will administer the estate without the courts having to choose.
- Nominate guardians for minor children.
- Establish a private trust to manage assets for beneficiaries who are not yet ready to receive them outright.
- Set out the deceased's wishes for funeral, organ donation and digital assets — wishes the law would otherwise leave entirely to the family's discretion.
Five reasons every adult should draft one
1. Protect your family from ambiguity
A will replaces guesswork with clarity. Family disputes after a death are rarely about money — they are about fairness, and a will is the only document that can record what the deceased considered fair.
2. Honour your wishes precisely
Property may be self-acquired but the state intestacy rules treat it the same as inherited property. If you want a particular grandchild to inherit a particular home, or if a long-standing friend has been more family than your blood relations, only a will can say so.
3. Reduce the time and cost of administration
An executor named in a will can act on the strength of the will and a death certificate. Without a will, the family will need to petition the probate court for letters testamentary — a process that takes one to two years in many jurisdictions and costs attorney fees and court costs calculated on the value of the estate.
4. Provide for those the law forgets
A will is the only way to provide for a partner you are not married to, a step-child, a charity, a long-serving employee or a friend who supported you in difficult years.
5. Plan for estate and inheritance tax
A properly structured estate plan can minimise or eliminate federal and state estate taxes. Without a plan, a significant portion of your estate may go to the government rather than your intended beneficiaries.
The mechanics — what makes a will valid
Requirements vary by state, but generally a will is valid if:
- The testator (the person making the will) signs the document.
- The signature is intended to give effect to the writing as a will.
- Two or more witnesses attest the will, having seen the testator sign — and signed in the testator's presence themselves.
Many states also allow a "self-proving affidavit" — a notarised statement by the witnesses that simplifies probate. Registration is not required in most states, but keeping the original in a safe place (or with your attorney) is essential.
A will costs a few hundred dollars to draft. The absence of one frequently costs the family thousands in probate fees, and a great deal more in goodwill.
Common mistakes to avoid
- Vague descriptions of assets. "My house" is meaningless if you own three. Use full addresses, account numbers and property identification numbers.
- Conditional bequests that violate public policy. A bequest cannot be conditional on the beneficiary not marrying, or marrying within a particular group, beyond limits the courts have repeatedly struck down.
- Witnesses who are also beneficiaries. In many states, a bequest to an attesting witness is void, even if the will itself is valid.
- Forgetting digital assets. Bank accounts and brokerage accounts should be addressed expressly. Email accounts, social media handles and crypto wallets are increasingly part of the estate too.
- Not updating the will. A will should be reviewed every three to five years, and after every major life event — marriage, divorce, the birth of a child, the death of a beneficiary or a significant change in assets.
The cost of doing nothing
The office regularly sees families who lose two years and a substantial part of the estate in probate proceedings that a one-page will could have avoided. The office also sees children of second marriages, friends who were like family, and charities the deceased intended to support — all of whom go away with nothing because the deceased never put pen to paper.
If you have not yet made a will, the best time to do so was when you acquired your first significant asset. The next best time is now.