What a Will Won’t Do

What a Will Won’t Do

Let’s make something perfectly clear: having a Will is very important! Dying intestate, or, dying without a Will, can cause heartache and headache for your loved ones. However, even a properly executed and professionally prepared Will won’t do everything. Read on to see what we mean.

A Will Won’t Avoid Probate

What’s the number one misconception about estate planning? It’s that having a Will avoids probate. The truth is that a Will alone will not avoid probate. In fact, the purpose of probate is to validate the Will and ensure that it:

  1. Is the most current Will,
  2. Has been properly executed, and
  3. Names a Personal Representative to fulfill the Will’s instructions.

A Will is basically just a set of instructions that specifies two key things: who gets what, and who is going to make it happen. But unless you die with only a modest estate (i.e., one that contains no real estate and is worth less than your state’s “small estate” standard), without the validation of a probate court, the Will itself can’t do either of those things.

A Will Won’t Transfer Authority

Take our advice, and don’t try to walk into a bank with a copy of a Will that names you as Personal Representative. The bank doesn’t have any way to know whether the account owner really has died, whether that will is the most recent version, whether it was executed properly, whether anyone is challenging its validity, etc., etc., etc. That financial institution will absolutely not allow you to transfer the money because a Will has no power or authority in and of itself. Only after the probate court accepts and admits the Will, and appoints the named Personal Representative, can that agent act on behalf of your estate.

The first thing your Personal Representative needs to do is file your Will with the appropriate probate court. The court must then issue your Personal Representative letters testamentary before he or she has the legal authority to handle your assets. Since this is such an important job, the Personal Representative will have fiduciary duty to put the needs of your estate and your heirs above all other considerations. It’s essential to choose the right person. See our post on Picking a Personal Representative for more guidance.

A Will Won’t Bypass Administration

Here’s something else a Will won’t do: Avoid the multiple step process that is required to settle the final affairs of the deceased.

There are several steps required to transfer a loved one’s property to their heirs. A Will is essential to provide guidance and instructions that ensure your wishes are carried out to your specifications, but it’s still necessary for someone to actually do all of it. Some of the steps required include: creating an inventory of your assets, paying the filing fee and inventory fees to the probate court, alerting possible creditors and paying valid claims, filing final tax statements, and distributing the remaining assets. With probate, these steps are taken with the public oversight of a court. However, it is not the court itself that performs the work. Instead, your Personal Representative has the responsibility of carrying out all the instructions. For more information, see our post on What To Do After a Loved One Dies.

A Will Won’t Control All Your Assets

A Will is only one of many ways to transfer assets to your beneficiaries. Many people do not realize that joint ownership and payable- or transfer-on-death beneficiary designations bypass your Will.

Your Will only governs assets or property that are owned in your sole name at your death. When you have assets or property that are jointly owned by others or have a payable- or transfer-on-death beneficiary designation, your Will does not control them. In fact, using beneficiary designations is an estate planning tool that many people use without even realizing it. Before you start planning to use these methods exclusively, though, keep in mind that there are downsides to transferring property through joint ownership, designated beneficiaries need to be actively updated to be effective, and you will always have other assets such as your personal property, which can’t be transferred with a payable-upon-death designation.

For more information, and a customized estate plan that covers your needs and unique situation, call our office to set up an appointment. We are happy to help!

Tienne McKenzie
Tienne McKenzie

Tienne is a paralegal specializing in estate planning.