The Last Will and Testament is the best known estate planning tool in America, so you would think that most people would have one, right? Wrong. According to estimates, somewhere between 50-60% of all American adults have never created a will. There are a number of different reasons for that, of course. People do have busy lives, and many just assume that they’ll get around to it eventually. Others are waiting until they have more assets to distribute, figuring that their small estates are not worth the time and expense involved in creating an estate plan. Still others don’t even want to think about the process, for fear that they’ll somehow be inviting death by acknowledging its inevitability. Even many of those who do create wills do so for the wrong reasons. The reality is that you should create a will. At the same time, though, there are some common last will and testament myths that you should definitely not believe:
If I create a will, my estate will stay out of probate.
The fact is that every will can be subject to the probate process. That’s part of what probate is designed to do, after all. When you die, your will has to be validated by a court before its provisions can even be put into effect. Despite that simple fact, millions of people continue to believe that the main reason to create a will is to try to avoid the costs and delays associated with the probate process. Unfortunately, no will can ever accomplish that goal.
If avoiding probate is a priority, then you need to think about things like trusts, and transfer-on-death provisions for your accounts to ensure that your assets are legally titled in ways that enable transfer of ownership without the need for a probate court’s intervention.
In reality, though, you don’t always have to try to avoid probate anyway. The process is not inherently evil, after all, and it actually serves an important societal purpose since it works to ensure that estates are properly settled while minimizing potential fraud and disputes over inheritances. The bottom line is simple: you don’t necessarily need to avoid probate, but if you do then you should not rely upon a will to achieve that objective.
I don’t need a will. My spouse gets everything automatically.
That may be true, but you cannot always be certain. When you don’t have a will, your state’s intestate laws determine how your estate gets distributed. That can sometimes provide outcomes that are very different from our expectations, and may cause you to leave certain assets to people you otherwise might have never considered as real heirs. Again, the only way to be sure that your last wishes are properly respected is to draw up a document that officially declares your intents and desires.
My estate is too small. Estate plans are for the rich.
That belief is common, but it’s also not true. The Last Will and Testament has been used by people of all income and wealth categories for some time now. In recent decades, things like wills and trusts have become so commonplace that most people don’t think twice when they’re mentioned as tools for ordinary estate planning. The fact is that almost everyone can benefit from having a will, even when the estate in question is very small today.
That is true for one main reason: today’s circumstances are seldom written in stone. While you might have a relatively small estate today that you view as unworthy of a will’s protection, you should never assume that your financial circumstances are something that will never change. By creating a will today, you will provide the estate planning foundation you need to ensure that you continue to plan ahead over the rest of your life. You not only protect your family’s financial interests, but make it easier to do so as you modify your will’s terms in the coming years to reflect changing circumstances.
I have a trust, so I don’t need a will.
Some people actually assume that a trust negates the need for a will, but there is a problem with that line of reasoning. What happens if you accumulate assets over the course of the coming years, and somehow forget to transfer ownership of those assets to your trust? That would leave those assets subject to the state’s intestacy laws. There is a better way.
One option when you already have a trust is to create a pour-over will that basically leaves all of your non-trust assets to your trust, for distribution through that planning vehicle. That can be an effective way to provide for the distribution of assets that you might have otherwise neglected, and ensure that nothing ends up being given to the wrong people when you die.
I can create my own will without an attorney.
This is a myth that has only grown more prevalent with the advent of the internet age. These days, there are so many free estate planning documents available online that it sometimes seems as though just about anything can be accomplished without professional legal advice. Unfortunately, that’s just not the case. Wills are legal documents, and that means that any mistakes in their creation could result in them being voided by probate judges – leaving the decedent without any legally valid will. That could cost your heirs time and money that could diminish the inheritance you worked so hard to provide for them.
At Biddinger, Bitzer & Estelle, PLLC, we understand how tempting it can be to assume that a Last Will and Testament is just another do-it-yourself project. We also know how devastating it can be for any deceased’s family when a will is invalidated and the court decides how assets are distributed. Our estate planning experts will work with you to ensure that your will is done the right way, so that your last wishes are enforced when you pass away. Contact us at our website or call us today at (989) 872-5601 to learn more.