Death. No one wants to talk about it, other than maybe joking around. Most of us especially hate talking about it with the folks we'll likely be inheriting from, or bequeathing to.

“Maybe half of Americans have a current and valid will,” says Debra Pankow, North Dakota State University Extension family economics specialist.

That's a shame, too, because without a valid will — basically a document describing how you want your property doled out after you're gone — you're casting your estate to the fickle winds of fate and state.

“If you don't have a will, your assets will be distributed according to state law,” explains Kynda Curtis, University of Nevada-Reno assistant professor.

Every state has different laws about the property distribution of a decedent — what you become in the eyes of the court upon your death. Without a will the state decides what portion of your property goes to which heir. The heirs can fight this, of course, with money and time.

Plus, even if the property you have would be disseminated by the state exactly how you hoped, it can take a while.

“Wills don't provide any mechanism for estate planning or asset transfer outside of the probate process which is lengthy — nine months,” says Curtis. Probate is the legal procedure for settling an estate.

As such, Curtis cautions, “Although drafting a will is a very important part of estate planning, it's not enough. Estate planning outlines the distribution of assets like a will, but it can also create financial security for heirs, address business organization issues, and grant peace of mind to heirs and the grantor.”

For instance, if property is simply bequeathed to an heir via a will, taxes are assessed at the time the property is transferred, Curtis says. On the other hand, selling the property outright to the next generation, or on an installment plan, also has its own challenges relative to the viability of the business and the new owners.

Curtis explains there are a variety of mechanisms to transfer property, including trusts, buy-sell agreements, gifts and corporate business design.

“Each should be considered in the context of the farm/ranch situation and goals of the family. An estate lawyer should be involved as well as an accountant…,” she says. “As tax laws constantly change and families grow, it's important to revisit and update your will at least every few years.”

The ways of a will

When you go to you're final reward, there are only two routes as far as the law is concerned, testate — with a will, or intestate — without a will.

The key foibles of accepting the intestate approach have been mentioned. Even when you opt for the testate option though, it's not necessarily as easy as writing your final instructions on the back of a feed sack.

For one thing, terms that make perfect sense to you may have an entirely different meaning or interpretation from a legal standpoint. That's one reason many states won't allow handwritten, unwitnessed wills — termed holographic wills.

For the same reason, according to various legal sources, few states will accept an oral will — termed cupative. If they do, it's usually in very specific circumstances, such as a soldier near death who passes his last wishes along to a companion.

The third basic type of will — called a self-proving will — is the one that will pass legal muster if executed according to laws of the state.

“Anyone of sound mind and possessing the rights of majority, may dispose of any or all of his or her property by will,” Pankow explains. “A testator is judged to be of sound mind if he or she has the capacity to know the general nature and extent of property owned, and the natural objects of his or her bounty — those who would ordinarily be expected to inherit property because of ties of relationship, obligations or other reasons.” It's easiest to think of rights of majority in terms of the legal age in your state.

In order to be admitted to probate, a will must be executed with certain formalities,” Pankow continues. “It must be in writing, be signed by the testator (or someone else in the presence of the testator), and be signed — in the presence of the testator — by two disinterested witnesses who either saw the testator sign the will or heard the testator actually acknowledge that the will is his or hers.”

There are obviously other requirements but those are the basics.

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