Common Misconceptions about Wills and Probate

Estate planning can be a delicate subject to broach. Most people do not want to think about or discuss what will happen after they are gone. Clearing up some common misconceptions about wills and probate is a good place to start on your path to knowledge and empowerment when it comes to estate planning. Having an attorney explain the probate process and how wills and trusts work can give you and your family peace of mind and let them know what to expect.

If You Die Without a Will, the State Gets Your Assets

This is simply not true in most cases. Even if you or a family member passes without a will, assets are distributed according to the intestate succession laws of your state. This means that your assets go to your closest relatives, usually your spouse or children. The administrator of your estate, who is appointed by the Probate court, will go down the line and search for relatives, including grandchildren cousins, aunts, uncles, grandparents, etc. If they cannot find any beneficiaries who are related to you, then your assets may go to the state. All of this can be avoided by taking the time to create an estate plan with knowledgeable wills and trusts lawyers. This ensures that your estate is distributed and arrangements are made according to your wishes.

Probate Is a Long, Drawn-Out Process

It can be, especially if a person with a complex estate dies without a will in place. However, most estates can typically be probated from start to finish in a few months, and the vast majority are settled within one year. The contesting of a will can also lengthen the probate process, which is another reason why proper estate planning is so important. An experienced attorney can help you create estate planning documents that make your intentions crystal clear, which can help your family avoid painful and often costly conflict own the road. An attorney can also help you create trusts that may allow the majority of your assets to avoid the probate process.

You Can Omit Your Spouse from Your Will

State laws vary, but most states do not allow you to completely exclude a spouse from inheriting some of your assets. Even if you do leave your spouse out of your will, they have the right to take or “elect” against it and may receive at least one-third of your assets. The reasons for leaving a spouse out of a will are often practical. For example, if it is a second marriage and your spouse is financially secure in their own right, you may wish to leave all of your assets to your children and grandchildren. If this is the case, a divorce attorney can create a waiver or pre-or post-nuptial agreement for you and your spouse to sign to ensure they cannot elect against your will after your death.

Ready to learn more about how estate planning can protect your family’s financial future? Our knowledgeable attorneys at Carosella & Associates can help.