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Going Commando in Estate Planning: Is It Right for You?

By: Attorney Shira Truitt


The term “going commando” originated with soldiers who were ready for battle. The swiftness with which they could be ready was partially due to not wearing underwear! I'll bet some of those soldiers didn't have a will, either. Seems appropriate, then, to use the term “going commando” to express the lack of a valid will or estate plan. While the lack of a valid will or estate plan can occur through inadvertence, some people would rather not make a will. Notable among those who chose to go commando and not have a will are Bob Marley and, more recently, Aretha Franklin. Having a will is not mandatory; the state in which you live has one for you if you don't execute one. However, it may not be what you want. Or, it could be exactly what you want! This article will discuss the pros and the cons of not having a valid will and, with any luck, you'll be able to decide whether to go commando or not!


When an individual dies without a valid will, their assets will pass according to the laws of intestate succession, which vary from state to state. Intestate laws determine how an individual's assets will be distributed if they die without a will or if their will is found to be invalid.


Under intestate laws, an individual's assets are typically distributed to their closest relatives, starting with their spouse and children. If the individual does not have a spouse or children, the assets will be distributed to the individual's parents or siblings. If the individual does not have any surviving relatives, the assets will pass to the state.


Intestate laws do not allow for the individual to specify how their assets should be distributed or to appoint a personal representative to manage the distribution of their assets. As a result, the distribution of assets under intestate laws may not align with the individual's wishes or with their financial and family circumstances.


In contrast, a valid will allows an individual to specify how their assets should be distributed upon their death, and it also allows the individual to appoint a personal representative, also known as an executor, to manage the distribution of their assets according to their wishes. A will allows the individual to have control over the distribution of their assets and to ensure that their assets are distributed in a way that aligns with their wishes and circumstances.


It is important to note that there are certain types of assets that may pass outside of the probate process, regardless of whether the individual has a will or not. These assets, such as assets held in a trust or assets with a designated beneficiary, such as a life insurance policy or a retirement account, will not be distributed according to the provisions of a will or the laws of intestate succession, but will instead be distributed according to the terms of the trust or the designation of the beneficiary.


In summary, when an individual dies without a valid will, it may be by choice. Talk with a competent estate planning attorney to make sure that choice is the right one for you and your loved ones.


If you need legal advice or a lawyer in Illinois or Missouri, please contact The Truitt Law Firm, LLC for assistance. For more information on The Truitt Law Firm, LLC or to schedule an appointment, please go to www.thetruittlawfirm.com.




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