The Imperfect Will
March 24, 2014
Many people put off creating their will. They’re concerned that something in their lives will change and make their will obsolete. Or, they just need to sort out “a few last details” before they create their will. This seems reasonable: no one wants to invest the time and money to create a will, only to have that investment become worthless.
My response to these concerns is that, while they are valid concerns, they should not delay the creation of a will. To understand why, consider the purposes of a will. For new parents, a will provides certainty that:
- children will have the guardians that the parents wish for, and
- a trustee will manage any gifts for the children as the parents wish.
Without a will, it's up to the government to select a guardian for the children. Also, the government may manage any money left for the children. This could lead to a different childhood than the parent had hoped for.
A will is also the primary tool for making sure property gets distributed according to the will-maker’s wishes. Having no will at all is much worse than having an imperfect will. Without a will, legislated rules direct the distribution of the deceased’s property. While the rules are simple and fair, this distribution doesn’t address any special situations. A potential will-maker puts herself in this position, when concerns about the future delay the creation of a will.
Even an imperfect will deals with the issues which are most important to you. For example, many parents struggle to choose the perfect guardian for their children. The problem is that no one will ever be as perfect a guardian as the original parent. An imperfect will may list several guardians and alternate guardians. This gives the parent the control of identifying who the candidate guardians are.
Likewise, an imperfect will describes the distribution of a will-maker’s assets. A will-maker may forget some gifts at the time of creating a will, but even an imperfect will includes the most important gifts.
In general, no one should delay creating their will because of an expected event, such as the birth of a child. An expectant parent should create a will immediately. In the will, they should describe how that event will change the will-maker’s wishes. By having a will, even an imperfect one, you create certainty that far outweighs any benefit of delaying without a will.
A will-maker can update a well-drafted will at any time. With most wills created electronically, a will-maker can change their will with little effort. Also, a well-drafted will describes what should happen when foreseeable events occur.