Helping to share the web since 1996


3 Common Misconceptions About Wills and Probate

You’ve worked hard your entire life. You managed to build up an estate that you’d like to leave to your heirs to make sure your family is taken care of.

If you don’t know about wills and probate, you risk your estate being distributed in a way that you never intended. About 60% of Americans don’t have a will in place, leaving the distribution of their assets up to chance.

It also leaves a mess for your loved ones to figure out while they’re grieving. Do you want to make sure your assets are distributed properly when you die?

Read on to learn what wills and probate are, and uncover the common misconceptions about them.

What Is a Will?

A will is known as a last will and testament. It’s a legal document that sets forth how you want your assets to be distributed upon your death.

Your will can also name guardians for your minor children, list all of your beneficiaries, and name an executor to the estate.

There are 4 types of wills and each of them has specific characteristics.

  1. A simple will is one where you write down how your assets should be distributed and who should handle that distribution. That’s a good thing to do if you don’t have many assets to speak of.
  2. A joint will is one that married couples will use to combine all of their assets under one will. In this type of will, when one spouse passes away, the other spouse gets the entire estate. When the second spouse passes away, then the assets go to the children.
  3. An oral will is created when someone is too sick to create or sign a written will. This type of will is very difficult to verify. It’s often not accepted in courts as an authentic last will and testament.
  4. A living will is a type of advanced directive. This document doesn’t outline how your property should be distributed. It deals with how your medical treatment should proceed if you become incapacitated.

What Is Probate?

Probate is a legal procedure that starts by authenticating your last will and testament. A court will look over the will and decide if it’s valid or not. Beneficiaries and heirs are notified of a court hearing to have the opportunity to object the authenticity.

Probate extends beyond the authenticating a will and creates a process to distribute the assets and property of an estate.

The court will then appoint an executor of the estate if one wasn’t specified in the will at the hearing. Again, beneficiaries and heirs have the chance to say why that person shouldn’t be appointed.

There will be a process to uncover and assess the value of the assets of the state. A person may have savings accounts, retirement accounts, investments, and real property that need to be assessed.

Creditors will be notified and paid what they’re owed. Taxes on the estate will also be paid. After that is completed, then the estate will distribute what’s left to the beneficiaries named in the will.

The laws vary from state to state regarding the probate process, but this is a general overview of how the probate process works.

Common Misconceptions About Wills and Probate

There are some common errors that people make when they’re planning their estates.

Estate planning can be very complex, especially if you have a large estate. These myths about wills and probate can lead to very expensive mistakes that can cause your estate to get mishandled.

  1. You Can Write a Will Yourself

Of course, you can write a will yourself. That doesn’t mean that you should write a will on your own. There are things that you can and cannot do with your will that you may not be aware of.

For example, it’s a common mistake to write down what your burial or cremation wishes are. The will probably won’t get touched until after the funeral.

You should have an attorney help you draft your will, have two people sign the will with you and have the document notarized.

That will help probate go faster because you’re making it easier for the judge to authenticate your will.

  1. Probate Is Long and Expensive

It is a common myth that probate is a very long and costly process. Probate may take a while for complex estates. For simple estates, it’s a relatively fast process.

For the fastest resolution of a probate case, you should hire a probate estate attorney. You may find that you don’t need to go through the probate process at all.

  1. It All Goes to the Government, Anyway

People think that the government is going to come along and take everything, so they don’t bother with estate planning.

The only time the state gets involved in the process is in probate. If you don’t leave a will, then the state will have to decide how your assets get distributed. The state will spend a lot of time and energy to locate your heirs and appoint an executor.

There will be estate taxes, but the amount of tax you pay will depend on the size of your estate. You can plan your estate to make sure you minimize the taxes paid.

The Truth About Wills and Probate

No one wants to think about their death. However, it is inevitable. The more you think about what will happen to your belongings when you die, the better off you and your beneficiaries will be.

The most common misconceptions about wills and probate are that you can write your own will, probate is long, and that the government is going to take everything. These aren’t true, and these myths can cost you and your loved ones time and money.

Be sure to visit the home page of this site for more helpful articles.

back to news headlines