Last Will and Testament. It may not do what you think it will.

September 20th, 2018 by


Many people believe that a good estate plan starts and ends with creating a last will and testament. This may be true for some people but for others it is not.

Why?

Often, it is because a last will and testament does not always accomplish what it’s maker intended; quickly and seamlessly transferring ownership of assets to family members without involving the probate court. A classic example of this rude awakening often occurs when the decedent’s family goes to go a bank where the decedent had an account, presents the will, and asks that the funds be distributed according to the terms of the will. The family is often surprised when the bank tells them that it will not distribute the funds unless the family commences a probate action so that the court can appoint a personal representative with authority to receive the funds from the bank. This is where a key misconception about wills comes into focus, a will is actually a document that functions as a set of instructions to be used by the probate court in determining how the decedent’s assets should be distributed.

How you should view a Will instead.

Rather than acting as a document to avoid probate, the very purpose of a will is for use in probate. Thinking logically about the phrase “last will and testament” makes this point obvious. The word “will” refers to a person‘s desires. The word “testament” refers to testifying or making a statement under oath, which is what often occurs in court. Thus, the phrase “last will and testament” comes to signify a person’s last statement to the court as to who should receive the person’s assets upon his or her death. A last will and testament is one of the key means by which the probate court derives the decedent’s intentions in terms of transferring their property upon death. Thus, while a will is an important tool for relating last wishes to a court, it is not a good tool for quickly and seamlessly transferring the assets of the decedent outside of court. Rather the decedent’s family must approach the court with the decedents will and ask that a personal representative be appointed with authority to collect and distribute the decedent’s assets, whether they be accounts at financial institutions, personal property, or real estate.

For many families, the process of going through the probate court can be time-consuming, stressful, and expensive. Probate can often take a year or more from beginning to end. During this time, the decedent’s heirs may be left waiting for distributions of the portion of the estate to which they are entitled. Probate can involve multiple court hearings and may require the family to hire outside legal counsel whose fees reduce the amount of the estate available to the heirs.

That said, a will can set forth some important information for the court to consider such as who the decedent wishes to have appointed as his or her personal representative for handling the affairs of their estate, who the decedent may wish to be appointed as a guardian for his or her minor children, and who should receive the decedent’s assets.  All of these things can help the probate case go more smoothly thereby making it easier to wind down the decedent’s affairs.

The main goal of an Estate Plan

For many people, the main goal in setting up an estate plan is to put a plan in place that helps their already grieving family avoid the time, stress, and expense involved in going through probate court. A last will and testament does not accomplish this goal, but there are other measures people can take to help their family transfer their assets upon death without the need for probate. Documents like beneficiary designations, marital property agreements, and trusts, for example, can do much to help to avoid the need to involve the probate court in unwinding the affairs of a deceased loved one. But, it is important to ensure that these documents, if utilized, are appropriately drafted and necessary next steps are taken to ensure that an estate plan that utilizing these documents is properly implemented so that the decedent’s assets transfer as intended.

You may be thinking, “why bother?”

Final Thoughts

If a last will and testament only sends my family to court, what is the point? The point is that a will is a good first step. It provides the probate court with valuable information if, for some reason, one or more of your assets has to go through probate. The important thing to remember is that a will is a good first step in an estate plan, but it is not necessarily the last step.

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Jim is an attorney with Halling & Cayo, S.C. His practice focuses on workers compensation, personal injury, insurance litigation, and estate planning. He is a trained mediator and has additional experience in family law and general civil litigation.
Email Jim: [email protected]