It wasn't until after Eleanor Barkelew got married a second time that she grappled with estate planning. She and her husband each had a child from a previous marriage, and the couple didn't want to create hassles for the family after they died.
"If the parents involved don't make the decisions about how things are going to go, it leaves it to the children to battle things out," Barkelew said. "We didn't want that to happen."
About 70% of Americans die without a will or other estate plan, experts say, even though most people say they'd like to save their heirs the time, taxes and costs that can add up when no estate planning has been done.
Barkelew, 69, will tell you why: People don't like the subject matter.
"You have to confront the fact that you're not going to be around. That's not a comfortable thing to think about," the Torrance resident said. "I have a lot of friends who are even older than I am, who keep saying they've really got to take care of these things. I'm afraid something is going to happen to them before they do."
Would that be a disaster?
Possibly, but not necessarily, said Mary Randolph, a California lawyer and author of "8 Ways to Avoid Probate."
When you die without a will or trust, your estate -- meaning your assets -- generally gets swept into a process called probate, in which a court decides, based on state law, who gets what. Usually that means that what's left of your estate after your debts are paid goes to your surviving spouse and children. If there is no surviving spouse or children, your assets go to your nearest relatives by blood or adoption.
For some families, this formula isn't half bad, Randolph said.
For example, for a childless married couple who want the surviving spouse to get everything, or a single parent who wants to leave his assets in equal shares to his adult children, state inheritance laws will place the assets in the right hands.
But introduce complications -- such as a blended family, children who don't get along, a husband and wife who came into the marriage with separate property, or intended heirs who aren't your closest relatives as defined by the state -- and the likelihood grows that the wrong people will get your assets, said Mitch Gaswirth, a partner in the Century City office of law firm Proskauer Rose.
How do you prevent that? The simple answer is to plan. The tools you'll need will depend on exactly what you want to do. Here are five key issues to consider.
Writing the will
Almost everyone needs a will, Randolph said. If you have children you need a will to name guardians for them in the unlikely event that you and your spouse die at the same time.
If you don't have children, you probably need a will to ensure that your money and personal property go to the people you want it to go to.
And even if you rely on a trust instead of a will to specify where your assets should go (see "Is a trust for you?" below), you probably need a will to deal with any property you might forget to put in the trust.
If your wishes are simple and you're articulate enough to state them clearly, you don't need an attorney to write a will, Randolph added. In most states, including California, you can execute a do-it-yourself will by handwriting your bequests and signing and dating the document.
If you'd rather not take such a bare-bones route, will-writing software is inexpensive and easy to use. You also can buy forms that you can fill out to create your will.
But if you have complex desires or heirs with issues -- such as drug problems, an inability to handle their own affairs or just a failure to be responsible -- you'd be wise to have an attorney help prepare the document and consider bequeathing options.
The downside to a will is that it doesn't keep your estate out of probate.
Should you avoid probate?
Many people decide to avoid probate because it's time-consuming, costly and quite public.
It typically takes six to 18 months to probate an estate, said Ed Long, director of Healthcare and Elder Law Programs Corp., a Torrance-based nonprofit that aids seniors.
The cost varies by the estate's size. Under California law, an estate with $150,000 in assets has to pay its attorney a $5,500 fee. The executor is entitled to the same amount. Add in miscellaneous expenses, such as appraisal and court costs, and probate can easily eat up close to 10% of the value of the estate.
The fees on bigger estates are smaller as a percentage of assets, Gaswirth of Proskauer Rose said, but there's a catch. If you own a $1-million property with an $800,000 mortgage, you might figure you'd be leaving to your heirs a $200,000 estate. But probate court figures differently. It would value your estate at $1 million. The attorney and executor for an estate that size would cost as much as $46,000, leaving just $154,000 for heirs after the mortgage is paid.
If these costs seem high, remember that they're set by law, not by a free market.
"The fees have nothing to do with the value being added to the estate," Gaswirth said.
