As Benjamin Franklin duly noted in 1789, “…in this world nothing can be said to be certain, except death and taxes.”  Yet, as certain as death is, a 2007 Survey by Harris Interactive for Martindale-Hubbell found over half of all Americans are without a will.

So what?  Do you really need to take the time and expense of creating a will?  Yes, absolutely.  And no, not necessarily.  What you really need is to be informed and to make an estate plan.

There is, of course, value in having a will.  Designating someone you trust to step into your shoes and wind up your affairs upon death.  Nominating a guardian for your minor children.  Disinheriting thoughtless, estranged family members.  Personally, I found one of the nice things about writing my will was that it was cathartic in recognizing my own mortality.

One common myth is, if you die without a will (intestate), the State of Nebraska will take all your assets and belongings.  This is generally not true.

If you don’t have a will, Nebraska has one for you through its laws of intestate succession: Neb. Rev. Stat. § 30-2301, et. seq. (2012).  Generally, your property is given to your parents, wife, or children, or some combination thereof.  Only in few instances, where the decedent has no close relatives, does the decedent’s estate es cheat to the state.

Another common myth is, if a close relative dies – such as a parent, child or spouse – a surviving family member, especially one who was nominated as the decedent’s personal representative, may be personally liable for the debts of the decedent.

While potential beneficiaries should not receive any share of the estate until after the debts and taxes of the decedent are paid, there is no personal liability for the debts of the decedent by his would-be beneficiaries or personal representative.  In fact, Neb. Rev. Stat. § 36-202 (2012) specifically requires every promise to answer for the debt of another person to be in writing.

Whether one has a will or relies on the intestate statutes, one is guaranteed to go through probate, which can be of significant time and expense.  Larger estates, particularly where there is property in several states, can be more complicated.  You can avoid the time and expense of probate through a number of strategies, such as a revocable living trust, joint tenancy, and payment on death (POD) provisions on bank accounts.

A new weapon in your arsenal to avoid probate becomes available January 1, 2013.  The Nebraska Legislature has passed the Nebraska Uniform Real Property Transfer on Death Deed Act, Neb. Rev. Stat. § 76-3401 (2012).  The act provides for home owners to designate a beneficiary for the home (or other real property in Nebraska) on the death of the home owner.  It doesn’t require the transfer of a current interest and is completely revocable, similar to a POD designation on a bank account.

Finally, while planning for death is essential, it is also equally important to plan on life, including who can make critical decisions for you during a period of disability, such as after a stroke or diagnosis of Alzheimer’s disease.  Durable powers of attorney and/or living trust can help you designate the person you trust to protect assets, make decisions regarding your health, and watch out for your well-being.

A good estate planning attorney can help you effectuate your intent for your assets well beyond the grave, but the best advice in estate planning may be to write your eulogy and work backwards: what do you want to accomplish in this life?  Plan on living forever, but live each day like it’s your last.

Additional information can be found at Berry Law Firm, PC’s website at www.jsberrylaw.com.