Legalese — You MUST have a will

photo courtesy of MorgueFile
photo courtesy of MorgueFile

I’ve written about this issue before, but I’ll do it again, because it is that important.

If you care about what happens to your loved ones, you must have a will. If you have children and don’t have a will, it is as grievous a sin, in my book, as failing to provide that child shoes that fit.  Maybe worse.

Stuff happens.  Bad stuff happens.  Frighteningly often.

People die when you don’t expect them to.

Imagine this scenario, if you will:

Mom and Dad have a long term marriage.  Their son, Sonny, is 13.  They don’t have much: a house with a 1st and 2nd mortgage, a couple of cars, a collection of mismatched coffee mugs, your standard collection of jewelry and furniture, and a bank account with a few hundred dollars in it.  Since they don’t have much, they never bothered with a will.   

Mom is driving to work one morning.  The sun is rising, and creates a glare on her windshield.  She doesn’t see that the light is red, and goes on into an intersection where a tractor trailer t-bones her car.  Mom is killed instantly.

Now what happens?  According to Georgia law, since Mom died intestate (which means she died without a will) Dad and Sonny split her estate.  Turns out that when Mom and Dad bought the house twenty years ago no one discussed with them the difference between having a house together as “tenants in common” versus “joint tenants with right of survivorship.”  As a result, Dad and Sonny have to share Mom’s half of the house.  So Dad owns 75% of the house, and Sonny owns 25% of the house.  Sonny also owns half of Mom’s car, and gets half of the money in Mom’s bank account.

Let me repeat that: Sonny, at the ripe old age of 13, owns 25% of the house he lives in, and 50% of a 2003 Toyota Corolla.  Plus, he’s now the owner of $750.00 that Mom had earned to pay bills.

Then Dad and Sonny go about their business, grieving appropriately, but moving on as best they can.  Dad decides that paying a 1st and 2nd mortgage is silly, when he can refinance, combine the loans and get a lower interest rate and lower monthly payment, something critical now that he’s a single Dad. 

Only he can’t.  Because he doesn’t own the house.  He only owns 75% of it.  Sonny owns 25%, and Sonny isn’t old enough to contract for a debt like that, and no one can bind him.  If the bank were to let Dad refinance, then when Sonny turns 18 he could sue to rescind the mortgage, because he wasn’t old enough to consent to be bound to a debt.

Let’s play it out further: Sonny’s grief over his mother is overwhelming.  Dad takes him to counseling, but Sonny, in his adolescent know-it-all-ness turns to self-medication.  He ends up getting into a car accident of his own at 19 years old, and the person who sues him ends up taking Sonny’s part of the house as a part of the settlement.  Or maybe Sonny takes his anger out on Dad, and when Dad tries to sell the house and retire to sunnier climes, Sonny won’t sign any of the sales paperwork, or won’t agree to a reasonable sales price. 

None of this is what Mom wanted.  None of this is how Mom would have planned it.  To save a few scant hundred dollars for a simple will, thousands of dollars, and a priceless amount of grief are spent.

Get a will.  Make sure your real estate is titled the way it needs to be titled.  Talk to a lawyer.  I promise you, we’re not all bad, and some of us are actually helpful. 


Nothing in this article should be construed as legal advice.  It is being offered for general information purposes only.  No lawyer can properly analyze your situation without discussing the particular facts and details of your individual case.

About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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