Popular misconceptions of probate start with the fictional reading of the will to the gathered heirs after the funeral followed by a major feud. Let’s look at some of the common myths and misunderstandings on wills and probate.
I Don’t Need a Will
This is a common myth. If you’re over 18, you should have a will. The simplest wills state which people will get your stuff when you die. The will should name an executor to handle your estate. You could name a qualified family member or an attorney to handle your estate. If you think this doesn’t matter because all you have are debts, think of what happens when your family is besieged by debt collectors because you’re not paying your bills anymore. When you have a will that names someone to handle all of this, you’ve spared your family this unnecessary pain
Once You Write the Will, You’re Done
Any probate lawyer can tell you that old wills are a source of many legal fights. A common problem that invalidates the will is the addition of new heirs. The will written for a first marriage will be challenged by the spouse you married several years later. A will written to provide for minor children can be challenged by the adults. For example, your adult children may argue they should get a larger share because they cared for you in old age, and someone later diagnosed as special needs may need more than their siblings. Note that a will is not a power of attorney document. Everyone should have a medical power of attorney and financial power of attorney so that the people you want to make decisions for you when you’re incapacitated can do so. Your spouse will not automatically be able to handle medical decisions for you after a stroke or dementia diagnosis. Having to fight over who will be your guardian will drain your estate. It may also result in the courts appointing someone to make medical and financial decisions you don’t agree with, whether it is putting you in hospice when you’d rather fight for your life or paying for expensive experimental care when you’d rather be allowed to pass on peacefully.
My Will Already Covers Everything
A will may say that half of your money goes to your spouse with the rest going to your children. However, your beneficiary designations on financial accounts take precedence over your will. If you don’t update beneficiary designations after life changes like marriage, remarriage, divorce and the death of heirs, your bank accounts, your investment accounts like your IRA and life insurance could go to people you didn’t to get the money. This is why you must have a full estate Plam Then every legal document that needs to be updated is identified and changed while reflecting your overall plan
Someone Can Contest It at the Reading of the Will
Realistically, there isn’t a reading of the will to the heirs as one sees on TV. If someone doesn’t like the terms of your will or estate plan, complaining to your attorney is not enough to invalidate your will. They’d have to go to court and file the necessary paperwork. Legal fees are involved, as well. They’ll probably hire a probate lawyer, and the cost may end up coming out of your estate at the end. You can write a will so that it specifically excludes certain heirs, whether you want to deny any inheritance by illegitimate children or clearly state that one child will not be an heir to the estate. You can set up a trust that sets rules and restrictions on someone’s inheritance, such as requiring an heir to prove they are drug free and stay out of prison to inherit any money.
Creating a Trust Solves Everything
Many people create a trust to eliminate the need to go through the probate courts. This strategy often fails. A common mistake is setting up the trust and then failing to move assets into the trust. If you don’t title the house in the name of the trust, then the house has to go through probate. If you don’t add new assets to the trust, whether it is the second home you purchased or bank accounts you established years later, those assets must go through probate.
While we’ve addressed the most common myths and misconceptions about wills and probates, know that you should seek qualified legal advice if you have specific questions or problems.