When it comes to wills and probate, there are a lot of misconceptions floating around. People don’t know what to do when they lose a loved one, and they often turn to the internet for information. Unfortunately, much of the information out there, especially regarding wills and probate, is inaccurate or incomplete. This can lead people down the wrong path and cause them unnecessary stress, heartache, and confusion.
As your local estate planning law firm, we hope this blog post helps clarify any confusion or questions you might have about wills and probate.
What Is a Will?
A will is a document that declares how a person’s property and assets will be distributed after their death. In order for a will to be legally binding, it must be signed by the person making the will (known as the “testator”) in the presence of two witnesses. Once the testator dies, the will must be filed with the probate court in order to begin the process of distributing the estate. It is important to note that, in some states, a handwritten will (known as a “holographic will”) may be considered legal if it is signed and dated by the testator. However, it is generally advisable to have a professional estate planning attorney draw up a formal will to avoid any potential challenges to its validity.
What Is Probate?
The probate process is the legal process of administering the estate of a deceased person. Probate involves locating and valuing the deceased person’s assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries. The will of the deceased person is the primary document that governs how the estate will be distributed. If there is no will, state law will determine how the assets are distributed. The probate process can be complex, so it is important to seek legal counsel if you are named as an executor in a will or if you are a beneficiary of an estate.
The Misconceptions of Wills and Probate
Clients Come into the office every week and tell me the following, “I have a will, so I am going to avoid probate;” or “I need a will so that I can avoid probate.” Unfortunately, neither of those statements is true. The fact is 1) if you have a will and own real estate or; 2) if you have a will and have other assets that exceed $100,000 that are not jointly owned or that do not have a beneficiary designation, you are required to go through probate to access or transfer the asset in question. Note that probate was designed in part to determine whether a decedent’s will is valid, appoint the personal representative (executor) named in the will, and give that person the authority to act on behalf of the estate. Once appointed, a personal representative is given letters testamentary as part of the process. Letters testamentary is proof that the personal representative named in the will has been officially appointed by the court with the authority to act.
Similarly, folks call frustrated that they are unable to sell their deceased mother/father’s property. They recount that they are named as the personal representative in the will, so they should, therefore, be able to sell the property. “The title company,” they recount, “is telling me that I need to get letters testamentary before I can sell my parent’s house; I am named to the personal representative of the will. Why can’t I just sell the property?” Keep in mind that even though you are named in a will as the personal representative (or executor), you have no authority to act in that capacity unless and until probate is opened and you are officially appointed as personal representative. At that point, the court will issue Letters Testamentary as evidence of your appointment.
How to Actually Avoid Probate
Probate can be a lengthy and costly process, and it is often one of the biggest concerns people have about their estate. However, there are ways to avoid probate.
If it is your intent to avoid probate, a revocable living trust allows you to distribute your assets, similar to a will but does not require probate to administer, unlike a will. The trustee then manages the assets according to the person’s instructions. This can help to avoid probate because the assets are not part of the person’s estate when they die. Another way to avoid probate is to name payable on death beneficiaries or transfer on death beneficiaries (synonymous terms) on your financial accounts. For example, retirement accounts and life insurance policies can have beneficiary designations. This means that the account or policy will pass directly to the designated beneficiary when the person dies without going through probate. Beneficiary designations can be a helpful way to avoid probate for certain types of assets.
Be mindful that ALL assets need to have beneficiary designations or be held in the trust to avoid probate. If only one asset is forgotten, probate may be necessary.
SALMON CREEK LAW OFFICES
The death of a loved one is always a difficult time, and the legal process of probate can be complicated and confusing. If you are facing the probate of a loved one’s estate, and are looking for a probate lawyer, Probate Attorneys Trent Kunz and Marissa Bartolucci can help. At Salmon Creek Law Offices, our legal team understands the challenges you are facing, and we will work with you to ensure that the probate process is as smooth and stress-free as possible. We offer a reduced hourly rate for initial consultations so that you can get the advice and direction you need without breaking the bank. Call our law firm today to schedule your consultation. We’re here to help.