Photo via Flickr user Nicki Varkevisser
Being in the 15–24 year old demographic is pretty freakin’ sweet. Nobody expects you to be responsible or employed, and you're still living at home, playing Angry Birds: Star Wars on the phone your parents bought you. This frees up a lot of time for unbridled drug use, alcohol poisoning, reckless driving, climbing structures that would best be left unclimbed, moshing, punching people in the head, and other stupid shit that is liable to get you killed. As a generation we’ve got the highest number of accidental deaths, by far. Mostly thanks to car accidents. Thanks.
The fact is, you’re going to die. Probably sooner rather than later. And when that happens, who do you think will get all of your wacky, vintage junk? That’s right, your lame parents. And what are they going to do with it the moment they’re done grieving? That’s right, it's going straight in the fucking trash where it belongs, now that you’re dead.
For your pre-mortal benefit, we called up Florida estate attorney Grady H. Williams Jr., LLM, of FloridaElder.com (whose hold music was Bobby Fuller’s “I Fought the Law”) for some info about getting a will and testament set up so you’ll have one less thing to worry about while texting Aaron the story of you getting sucked while off going 90 in the Civic.
VICE: Mr. Williams, what happens to my stuff if I don’t have a will and I drive into the ocean on my scooter because I’m distracted by a Google Glass update?
Grady H. Williams Jr.: Here’s the deal: If you don’t have a will that is legally enforceable upon your death, then your state or jurisdiction has a default will for you called an intestate succession. That’s legal talk for how the state legislature thinks your property, your stuff, your legal rights should be passed upon your death, based on your marital status. If you’ve got someone like my son, for example—who as far as I know is single with no kids—if he deceases tomorrow, then his mother and I are his heirs. Whereas if he had a one-year-old child we didn’t know about, that child would become his heir.
So it’s probably important to set up a will if you don’t want your mama, baby mama, or baby baby to inherit your collection of female-bodybuilder VHS porn, or whatever.
Depending on what you’re trying to accomplish versus what your default position is, yes, it may be very important to you. On the other hand, if you don’t have anything, or if you’re perfectly happy with your parents or children or wife getting everything, that may be OK.
Is it enough to sit down at my computer and type out a bare-bones list of who gets what and save it as My Chill Will.docx?
No. In most states, to do a valid will, first of all, it’s gotta be handwritten. Number two, it’s gotta have testamentary intent—that is, it’s the document you meant to serve as your last will and testament. Typically it will have to be signed by you in the presence of two witnesses who must sign it contemporaneously in your presence and each other’s presence.
To take it a step further, in most jurisdictions—by statute—you also have the highly recommended option of doing what’s called an affidavit. A self-proving affidavit, where you and the two witnesses sign again, saying, “This is the will, we’ve signed it in each other’s presences, the witnesses have signed it, and we all signed it in front of the notary who is taking this affidavit."
The notary then signs the affidavit certificate and seals it. And now, under statute, that can be admitted to probate, which is the court procedure after you’re gone—without having to get a separate testimony or oath sworn to by the witness. It authenticates the will. [Note: Some states, including California, will accept a witness-less will, called a "holographic will," which must be entirely handwritten and is usually reserved for cases of death in isolation.]
Photo via Flickr user Stephen Harlow
So how would I leave my 2010 Coachella wristband to my 2010 girlfriend?
You could provide in the will itself that you’re leaving your wristband to your girlfriend, or you can do a separate written statement that identifies the beneficiaries of specific items of tangible, personal property.
Why have a separate statement?
The advantage is that you don’t have to do a bunch of things at once. You can make the will one day, and then later go through the laundry list, like, "The baseball card collection goes to my best friend from 8th grade," etc. Keep in mind, that will is going to remain open to any future legal entitlements that would otherwise be payable in your name after you die.
What if in 2005 I texted my best friend that he could have my Nintendo DS when I died, but in 2009 he fucked my girlfriend and now I think he’s a piece of shit. After I die, could he use that text to steal my DS too?
He certainly could bring that to probate, but that type of case is going to be dealt with under the law of contracts. So the question is usually going to be framed in terms of whether or not that’s a legally enforceable contract between you and your… friend. Normally—and I would call this the majority rule—the court would say that no, it’s not legally enforceable because your friend didn’t give you anything for that promise. It’s what we would call a gratuitous promise—a statement of intent to make a gift, and in most jurisdictions that would be unenforceable as you stated it.
Photo via Flickr user Jason Lei
Are there any guidelines to writing the actual document? Any necessary language?
To keep it as simple as possible: Identify yourself, identify who will be acting on your behalf after your death. That person is normally called either a personal representative or an executor. Optionally, you can identify your family or next of kin; some people like to do that.
Also, it’s optional to even identify your stuff. You can make it all-encompassing. A very simple will could read, “I’m John Doe. If I die, my brother James Doe is going to be my personal representative. I’m leaving the residue of my estate to my brother James Doe.” You can even go further and say, “If my brother, James Doe, doesn’t survive me, then I’m leaving the residue of my estate instead to my parents.” Or something like that. And then, usually what is recommended is, you authorize your representative to serve without bond, with all statutory powers granted in that jurisdiction.
Sorry, why would there be a bond?
A bond is simply a form of collateral that’s given to the court to make sure you do your job correctly, and if you default on it, then in theory, the estate can recover it from the company that issued the bond. But normally you’ll waive the bond in the will and the court will respect that, and that will usually save you money.
So if you write it in some bare-bones vernacular like “I’m leavin’ everything to Pa," and you’ve got the two witnesses and everything, could you run into any problems?
You should be able to. You gotta show the testamentary intent, though. I’ve occasionally seen a person’s will that couldn’t be fulfilled, practically speaking, and then they had some levity in it as well, so it was sort of like, Did they really intend this to be a will or not? I think as long as that part is clear, it should work.
Most experienced attorneys go into more detail because the devil is in the details, and the issue is always, What if this happens, what if that happens? I mean, what you’re trying to do is deal with a document that’s going to survive you, and leave your beneficiaries better off for having received something, so normally you’d have to think about them, think about what you’re trying to accomplish, and build in some contingencies for the future. That’s where you get into a little bit more complexity. Certainly for a starter-type person who's got maybe a limited amount of wealth, it could be that simple and legally effective.
Would this also be a good opportunity to say what you would like done with your body? Like, I’d really like to be fired out of a canon, over a fence, into Jack White’s backyard.
You can certainly do so, although that would almost certainly be unenforceable.
Keep in mind, a lot of times the will may not be recovered by the time of the disposal of the body, so if you are doing that, I think it’s good to also have a separate, non-will, letter of instruction provided to whoever is going to be in charge. But remember, in most jurisdictions your next of kin will have legal custody over your remains. If you have parents living, likely they’re the next of kin who would be consulted by a funeral director before anything was done with your remains. If you don’t have parents living, then they’d typically look for siblings. I say that to let you know; it’s good to give that letter of instruction to someone who is actually going to matter.
Photo via Flickr user Dan Foy
Sounds like a lot of work, to be honest.
Well, there are also will substitutes. What many young people can do is simply take advantage of “beneficiary designations” for bank accounts, or any investments or retirement funds. Most institutions will allow you to name a beneficiary who doesn’t have any current legal ownership of the account, but would legally pick it up if you died, and you don’t need a will or probate for that.
Lastly, what about all of this credit-card and student-loan debt? Does it just die along with me in the explosion?
In most jurisdictions, the debt is paid through the probate estate process, and in some jurisdictions that’s essentially the only way it is paid. So for example, in Florida, if I get a Sears credit card, and I buy a lot of tools, if my wife doesn’t do a probate then she’s not totally liable for it, and that debt effectively dies with me. Now, if my estate is probated, then they have an opportunity to make a claim against my estate, and there’s a procedure where my estate is supposed to let them know what’s going on so that they’re not defrauded. But some jurisdictions have case law or statues that allow recovery against contract beneficiaries or in some instances, family members. But that’s by specific laws.
And I’m guessing you can’t leave your debt to someone you don’t like.
No… not really. I mean, you can do it, but I don’t think they would want it.
Follow Jules Suzdaltsev on Twitter.