Do I Need a Will?

Lisa Nachmias Davis

Davis O'Sullivan & Priest LLC

59 Elm Street, Suite 540

New Haven, CT 06510

203-776-4400

(last updated October 4, 2022)

What will happen to your "stuff" if you die? You may think the Will decides this. Maybe not! Your will only decides what happens to the stuff that can't get from you (now dead) to a new owner in any other way. For lots of people, the Will is meaningless -- just a backup plan to take care of the odds and ends.

For example:

If your life insurance policy, bank account, brokerage account, IRA, etc. names a beneficiary when you die, and if that beneficiary is living when you die, the account goes to the beneficiary, no matter what the Will says. If, on the other hand, the beneficiary is not living, or there is no beneficiary, the institution where you have the account may say that the account goes to your "estate," or in other word, becomes property that is disposed of by your Will, if you have one. Most IRAs are set up this way. Retirement plans may have their own rules if you don't have a beneficiary (or even if you do and you have a spouse).

If your accounts are held "jointly with rights of survivorship" with someone else, then if other owner "survives" you, outlives you, the other owner gets the account when you die. No matter what your Will says. Even if you didn't intend that to happen! The law says the bank that holds the account is not liable for turning the account over to the surviving owner. The probate court says that the account does NOT go through probate. There are exceptions but they generally require someone to prove in court that the opposite was intended or that the account was titled this way through fraud or some other impropriety. An account generally is held this way if it is titled thus: "John Doe OR Jane Doe." Or if it just lists the two names. Sometimes you have to check the bank's signature card -- a bank statement might still have only one name printed on it, even if a second person was added later.

If your real estate is held "jointly with rights of survivorship," then the surviving owner gets the real estate, no matter what your Will says. HOWEVER, a tax return must still be filed when you die in order to clear title to the real estate. See my article, "When Somebody Dies in Connecticut."

As to what happens to your books, CDs, iphones, old clothes, jewelry, photos -- it depends on if anyone cares. If nobody cares, it's whoever takes them -- and they may just get thrown out. If you own a Picasso, or if there is a fight about it, see below.

Things that have your name on them as owner when you die, that don't have some other way to get to the new owner, are part of your "estate." Your "estate" is the only thing that is disposed of by your Will -- if you have one. If you don't have a Will, then what happens to those things will depend on the "laws of intestacy." It's often said that if you don't have a Will, the government writes one for you -- that "government will" is the the law of intestacy.

But before we get to that -- even if you do have a Will, and even if you have an "estate," if your estate doesn't include real estate and is under $40,000, AND you owe the State of CT for long-term care provided during your lifetime (or care in a state hospital like CVH, or you spent time in prison within the last 20 years, or you owed the state money for child support paid to your child) AND what you owe the State is MORE than your "estate," --- then it really doesn't matter because the State of Connecticut (A) handles your "estate" and (B) takes most of it -- even your funeral isn't paid in full. ) See Section 4a-16 of the Connecticut General Statutes . (The exceptions are different for Medicaid than for other things -- consult an attorney! but fortunately, the legislature made big changes in 2022 and gets paid back for a lot less than previously)

Back to the "government will" -- the laws of intestacy.

IN CONNECTICUT, IF YOU HAVE AN "ESTATE" (and 4a-16 doesn't apply) BUT YOU DON'T HAVE A WILL, WHO GETS YOUR STUFF (after taxes, fees, expenses, and debts are paid)? What does this "government will" say?

surviving spouse and children who are ALL also children of the surviving spouse = spouse gets first $100,000 plus 1/2 of balance, with the remainder being split equally by the children;

surviving spouse and children at least one of whom is not a child of the surviving spouse = spouse gets 1/2, remaining 1/2 equally to the children;

surviving spouse, no children but parents = spouse takes first $100,000 plus 3/4 of balance, with remainder equally to parents;

surviving spouse, no children and no parents = spouse takes all;

no spouse, but children = all to children, equally;

no spouse, no children, but parents = all to parents;

no spouse, no children, no parents, but siblings (whole or half blood) or their issue = all to siblings or "issue by representation" -- nieces and nephews, for instance

no spouse, no children, no parents, no siblings and their issue = all to "next of kin" (nearest in "degree" of kindred, which is a little more complicated, but usually aunts/uncles, cousins, etc., depending on who is living -- here's one chart);

none of the above -- to stepchildren or their issue
Not even stepchildren (or their issue) -- property "escheats" (real property goes to town where located, personal property such as bank accounts, goes to the State of Connecticut).

(The terms "issue" or "descendants" or "representatives" mean children, or children's children, or children's children's children, etc.)

This is all according to THE LAWS OF INTESTACY as set forth in sections 45a-436 through 45a-439 of the Connecticut General Statutes).

EVEN IF this is OK by you, there are two other things that the "government will" says if you don't have one

1. Your "government will" says that whoever is handling your "estate" (the "administrator") must purchase a bond -- pay insurance -- covering what you own other than real estate, unless you agree to ask the Court for permission before handling any money.

2. Your "government will" says that the administrator must get PRIOR court approval before selling any real estate.

If you don't like the "government will," then you need one of your own!

But, do you need a lawyer? The online forms may be ok if what you want is VERY SIMPLE and straightforward, AND you remember to do the "optional" affidavit where the two witnesses sign before a notary saying they saw you sign the will (etc -- I'm paraphrasing - follow the instructions). It's optional in the sense that the will is in fact valid without it, but it can't usually get admitted to probate without that affidavit or live testimony. The lawyer is going to be more expensive. In my office, the cheapest will is probably going to be $750 unless we are cutting you a break. More complicated costs more.

What you really need the lawyer for is advice. I've been doing this work for nearly 32 years and have seen it all. A younger lawyer with a lot of imagination will also help you work through the "what ifs". Try to imagine what should happen if 10 years from now whoever you wanted as beneficiary isn't going to be living. Make sure the will covers that scenario. And if your plans are NOT simple, or if you have a beneficiary who is a minor or who gets government assistance or can't handle money safely, or of course if you have a lot of money (say $3 million or more) or if you want advice in general (I'm sure you NEED it, but do you want it?) then you need a lawyer.

*DISCLAIMER: THIS INFORMATION IS NOT PROVIDED AS LEGAL ADVICE AND CREATES NO ATTORNEY-CLIENT RELATIONSHIP. NO ENDORSEMENT IS INTENDED BY ANY REFERENCES HEREIN. THIS IS A VERY GENERAL DESCRIPTION OF WHAT HAPPENS AND EXCEPTIONS MAY APPLY! PLEASE CONSULT YOUR OWN LEGAL AND FINANCIAL ADVISORS BEFORE TAKING ANY ACTION. ALSO: I can only provide general information, and will not provide advice about a particular case without a formal engagement. Writing to me does not create an attorney-client relationship.