It is important to note that this is not a condemnation of a common estate planning tool referred to as a will—just the opposite. The point of highlighting the limitations of a will is so you can fill the gaps it leaves with other documents.
An estate plan is a collection of documents aimed at ensuring your assets are protected and that they are going to the beneficiaries of your choosing. Different documents achieve varying degrees of both. That is why a skilled estate planning attorney knows how to piece together specific documents based on your particular needs.
Suppose you choose to create a will, excellent. However, you should know its limitations so that you get the most out of your estate plan.
The Big Myth
By putting all of my wishes in a Will I have done all I need to do to take care of things when I die, right? Not exactly. You cannot name your Will as the owner of your home or your bank account. You do not normally name your Will as the beneficiary of your retirement or life insurance policy. Both of these steps are called “titling of assets”, and since you cannot title assets in coordination with a Will, then extra steps have to be taken when you die.
What extra steps?
Probate
Since title of assets is missing with a Will, then your family has to go through probate to carry out your wishes. The purpose of probate is to pass title of your assets to the people you have named as beneficiaries in your Will. Before that can take place, a probate court has to verify that a will is valid, all of your legal heirs have agreed to the wishes in your Will, and all of your possible creditors have been notified – all as a part of a public government process. Some people prefer to avoid probate because of its lack of privacy. Others may prefer the oversight that comes with everything passing through probate.
Regardless of where you stand on it, understand that your will isn’t going to avoid probate, and the sole reason is because a Will is missing title. As an old lawyer friend of mine used to say … “The absence of title equals the presence of probate”.
Kevin Tharpe
J. Kevin Tharpe P.C. approaches estate planning by focusing on a bedrock of legal principles. Because of our command of them, we create firm estate plans that deliver peace of mind. Our clients walk away with confidence because we ensure they fully understand the process. Contact us to schedule a consultation.
Kevin Tharpe
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