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Editor’s note: This article is for general information only and does not constitute legal advice or create an attorney-client relationship. You should always consult an attorney for specific legal questions.
Q: I was told that I had to get a will but I really don’t have much to put in it; is it really necessary?
A: It is a common misconception in the armed forces that all service members need to have a will. Sometimes a freshly minted Private will come into the office solely because his first sergeant told him he needed to get one made. If you don’t have a will it does not mean that no one in your family will inherit your belongings, it doesn’t mean that everything will go to the government, and most importantly, it will have almost no effect on your Servicemembers Group Life Insurance benefits. In fact, in some situations, it is actually smarter not to have a will at all.
So what exactly is a will? A last will and testament, as it is more formally known, is just a list of directions that someone makes to tell their friends and family what to do after they are gone. This can include decisions about who will get your property, but it can also appoint guardians for your children, set up a trust to control how your heirs can spend money you leave them, direct family on your preferences for burial, and other decisions you might want to make.
As important as a will is, the law understands that sometimes people don’t have time to prepare one, and others may not have the money to hire a private attorney to make one. For these reasons, every state has a series of intestacy laws that govern what happens when there is no will. In the case of intestacy, which is the lack of a last will and testament, the government tries to decide what you would want to happen if you had made your own will. As most people typically want their belongings to pass to their family, that’s what intestacy does. First, everything will pass to your spouse. If you are unmarried with children, it will pass to your kids instead. If you are unmarried without children, it will pass to your parents, and if your parents are no longer living, it will go to the next closest relative. Another thing to be aware of is that your SGLI benefits are treated as a life insurance contract and pass independently of a will. So even without anything written, your SGLI will still go to your beneficiary.
If you are comfortable with the way intestacy works, you probably don’t need a will. In fact, sometimes a will can be more of a burden than a blessing. Just because you have one written does not mean that everything instantly passes when you’re gone; it must first go through a legal process called probate. In probate, a judge will read your will and order that it be carried out in accordance with state laws. As this is a legal proceeding, it will often require an attorney, and there will be some court fees. That means that if the only thing that a Soldier or Airman owns is a DVD player and they put it in their will, the court and attorney’s fees could end up costing more than the property is worth.
Despite the fact that you do not always need a will, there are some circumstances that make it a smart idea. If you are from a mixed family, meaning you have children from multiple marriages, stepchildren or adopted children, you should look into having a will written. Some states do not automatically treat children from outside the current marriage, adopted children or stepchildren the same. If you are in a same-sex relationship, despite the recent Supreme Court decision, some states may not have changed their intestacy laws and may require a will to be sure your desires are carried out. Also, if you do not want your property to pass to your spouse, children or parents automatically, you would obviously want to specify who you want to receive your property instead. Finally, if you have a lot of assets, real estate, stocks, bonds, savings, etc., you should get a will to make sure that everything is managed appropriately.
As a final note, even if you are comfortable with intestacy, there are other benefits to having a will. It will allow you to decide your children’s guardians and structure the money that you leave them. However, if you are a young, single service member, you probably do not need a will, but it is always a good idea to contact your local Legal Assistance Office to make sure. They will be more than happy to assist you.
