“Living with eyes closed is easy; misunderstanding all you see” the great sentence from the song of renowned Beatles gives a little rest to our minds when we are rushing through life, craving to understand every little thing. Well, this might be true in some cases, in cases of small insignificant factors that we misunderstand. Or when really big “what is this world” kind of questions haunt us till we are no more sane. However, there are topics that the sentence of Beatles doesn’t apply to. One of those is wills and probate. As it usually happens, by not being professional in the field, a lot of myths get us and we trust in them. But remember, that wills and probate are not something to play with.
As you know, a will is a legal document by which a person expresses his or her wishes as to how their property should be distributed at death. And probate is a lengthy, potentially costly process, especially in the case, when the descendant did not leave behind a valid or up-to-date will.
Now lets clear some of those myths.
Myth #1. If you don’t have a will after you die the state will get everything you own
This is not true. If you die without a valid will then state law will kick in. Frankly, the law differs from state to state. Usually, your spouse and children are first in line to inherit your belongings. But in some states, your spouse and minor children share your assets. The smart reason behind it is that you don’t want your 5-years old little Mary to inherit half of your bank accounts. The only time that your assets go to the state is when no relatives of yours can be found. And when I say no relatives, I actually mean no relatives: they are going to try to find even your aunts long-lost grandchild who lives in Russia. And if they can’t find anyone your assets go to the state: escheat, that’s how it is called.
Myth #2. It takes a lifetime to probate an estate
Usually, the only delay is the period that gives creditors time to file claims. This period varies from state to state. It starts when notice of the probate proceeding is published, runs from three months to a year, but no longer than that. After this, the next step is when the personal representative gathers all the assets, pays the debts and taxes. However, there are reasons by probate cases take years. The three main causes are family fights: siblings can’t divide a parent’s assets, a very large estate: it owes federal or state estate tax, and ongoing income: Michael Jackson continued to receive income for decades after his death.
Myth #3. I need a will: it will keep my loved ones far away from probate
Having a will is for sure very important and will probably save some time and nerves for your loved ones. However, it is not true that if you have a will, then your family won’t have to deal with probate. That is because your assets have to pass through probate anyway if they are not held by a trust or if beneficiary designations are present. For example, a transfer of your assets to your spouse’s name before your death will keep them away from probate.
Myth #4. If no one contests the will, I don’t need a lawyer
Let’s go deeper into the process of probate to better understand why you need a lawyer in the probate even if no one contests the will. After inventorying an estate, you need to notify the creditors of the death. Then you need to settle the debts of an estate. Lastly, you got to take care of other issues before any of the assets of the estate are distributed to the designated beneficiaries. Does that sound like something you can do on your own? During the process of probate, the main reason why you need a lawyer is to make sure your interests are protected. The lawyer will make sure that you get through the ugly process as efficiently as possible. Remember, that attorney’s guidance and representation can be essential when will contests are raised. However, the whole process of probate is not easy itself either.
While the topic of wills and probate is not the most exciting one; none of us wants to think about dying yet, it is crucial to be prepared and knowledgeable. So take a little bit of time, put in your calendar meeting with an attorney, get it over with. After all, none of us are here forever.