Who REALLY ought to make a Will?

If you are considering whether you need to or not, the answer to this question starts with a question…..

“Who would inherit from you if you did not make a Will?”

When I interview someone who is considering making a Will, the first issue I explore is THAT.  There is a good reason I start with “who would inherit if you do not make a Will?”   It lets me know who the “players” are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes surprised when I start off questioning them about their closest family members, especially when what they want me to know is “I don’t want those people in my Will”.  This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will is considered an “interested party” when the Will is being probated. Legally, we call these people “distributees” or people who are “adversely affected” by the Will. They are the only people who will have standing to contest a Will.  If it’s a close relation being excluded, say a child or a sibling, I always ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out.

I am amazed at how often people do not consider the question “Who would inherit from me if I did not make a Will?”  I frequently see this is Estates where there is no Will, and distant relatives are inheriting. Whenever I see this, often with meaningful money involved, I always think “Could they have intended THIS?”  Did they not have anyone, a friend, or a charity, that was more deserving than the distant relatives who are now inheriting?  I’ve seen cousins inherit who never even met the decedent!

Think this never happens?


Truth be told, I frequently represent distant relatives in the inheriting position, when the inheritance is a major score for them. I like these cases, but at some point it always occurs to me (and it sometimes occurs to people who actually knew the decedent) “they should have made a Will”.

Very often in those cases people tell me “the decedent talked about making a Will”, or “he told me he was going to make a Will”, but for some reason they never did. I think there are several reasons for this….

Procrastination – a vague intent to do it in the future, and just not getting with it.
Superstition – a fear that doing it will cause illness or death.
Cheapness – not wanting to pay for a Will.
Delusions of immortality – more people have this than one might think.
Monumental inconsiderateness – totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family….say a married couple with children. There are good reasons for such people to make Wills too, but the fact is, the inheritance aspect is not so different making a Will than if they didn’t.  (To be clear, those folks should make Wills for other reasons)

People who don’t ask the question “Who would inherit from me if I did not make a Will?” are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. Business-wise, I don’t mind this all that much, these end up being my largest fee cases, but…..it sure is puzzling.

Maybe they “just can’t deal with it”, and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I’ve had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.

I will say this…..if the person has talked about it, and you think they WANT to do it, HELP THEM get it done. But, as we say in poker, don’t overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should make a Will doesn’t.