Ask a JAG: Assets after death, needing a will

Scales of Justice and Judge`s gavel

By Capt. Faisal Akhter (U.S. Army)
Stuttgart Law Center

Q: What happens to my assets after I die? Do I need a will?

A: A last will and testament is a legal document which controls the disposition of your property at death. As long as you are living, your will has no effect. After your death, the “executor” who you name in your will must have the will probated, or enforced, in a probate court in your state of legal residence.

As you can imagine, not everyone has a will upon their death. And that’s perfectly fine. Most people don’t need a will. There’s something called dying “intestate,” which basically means dying without a will. If you die intestate, your property goes first or in major part to your spouse, then to your children and their descendants.

If there are no descendants, your property goes back up your family tree to your parents, your siblings, your siblings’ descendants, your grandparents, etc. How that exactly works depends on your state of legal residence. Chances are this method is precisely how you want to distribute your estate upon your death.

If you have any minor children, you can create a document listing your desire for guardianship of the children. However, your desire is not necessarily what the court will do.

The court will always do what’s in the child’s best interest. If the court finds your appointed guardian to be a poor choice, it will search for a better candidate. That said, as long as your choice is a competent one, the court will likely accept your selection.

Some people want their will to establish a trust. A trust sounds rich and fancy but you probably don’t need one. They’re also rather expensive, requiring payment to create one and ongoing maintenance fees. That’s money that could be given to your children instead of paid to lawyers and bankers.

Without establishing a trust, you can still direct your executor to control gifts to beneficiaries until age 18 or 21. The executor can nevertheless use the child’s inheritance for the benefit of the child, making this option less complicated and less expensive.

However, if you feel your 21-year-old will be irresponsible with the money, you can create a trust to safeguard their inheritance money. But really, how rash could a 21-year-old be with money?

This column is not intended as individual or specific legal advice. If you have specific issues or concerns, you should consult a judge advocate at 421-4152/ civ. 0711-729-4152.