Q: My wife and I have two children. I want to leave everything to her and, if I outlive her, I want everything to be divided equally between my children. Do I really need a will if I want everything to go to my wife and then my kids? Won't that happen anyway?
A: This is one of estate planning's biggest misconceptions: "I don't need a will because everything will go to my spouse with or without one".
If you own everything jointly with your wife or she is named as beneficiary on all of your accounts, then it is likely that she will get everything in the event of your death. Let's face it, a lot of married people arrange their assets this way. Jointly owned assets or assets with beneficiary designations transfer outside of probate so the will would likely not even come into play.
However, this may not be the case if you own assets in your name alone or you fail to make an appropriate beneficiary designation. Remember, if you fail to leave a will, the folks in Indianapolis will supply you with one in the form of the intestate statutes and there, my friend, is the problem.
No matter what you might believe, a surviving spouse does not automatically receive a deceased spouses estate. In fact, it is likely a surviving spouse will receive considerably less than all of the estate.
Under the intestate statute, a surviving spouse receives one half of the decedent's estate and the other one half is divided among the children. If the surviving spouse is a second or subsequent spouse who did not have any children with the decedent, she receives even less than half.
What all of this means is your wife won't necessarily get everything when you die. Now you can take a chance that everything will work out or you can make sure it does work by executing a simple estate plan that, at the very least, includes a will.
In addition to making sure that your stuff gets to your wife, you can choose who wraps up your affairs by naming the personal representative. If you don't execute a will, you don't get to make that call. If you die intestate, your wife might be your personal representative or it might be your ne'er-do-well son who's interests might go slightly beyond taking care of mom.
Finally, although I have been referring to a deceased husband and surviving wife, the process works the other way too. If a wife dies without a will, the husband faces the same uncertainty.