July | Marin Kirby
A last will and testament, or a “will” is a legal document that states how a person wants to distribute property and names an executor to effectuate their requests after their death.
Our law office highly recommends that at a minimum everyone has a will. While the will is an incredibly powerful asset to have if drafted correctly, sometimes having alternate solutions, like a trust, may be better for your estate. Often, a trust can be a better solution for your estate.
PROS of having a will
1. Wills Get You Out of Intestacy
Intestacy is what happens after a person dies without a legally valid will, and instead of designating your wishes for how property is handled, the State or Government decides who will inherit your assets.
In cases of intestacy these assets may be awarded to family generally and may not be in accordance with your wishes. Intestate situations are often lengthy and straining on your family.
Even though your will may need to go through probate; your family will be going into the court proceedings with knowledge of your intentions. Having a will would allow your family to avoid the conflict and finish probate smoothly.
2. Clear Instructions for Asset Distribution
The main benefit of having a will is that it allows a distinct list of how you want your assets to be distributed. It allows flexibility that addresses left over assets that may not be covered by beneficiary designations, moves items into trusts, and will connect all of your estate planning documents.
The will allows for you to tell your family clear intentions of how to deal with your estate and guides them towards your final wishes.
3. Allows You to Name Executors
Naming an executor is also a power granted by the will, in cases where an executor is not names the court will appoint an administrator that personally you wouldn’t have chosen. A trusted executor will carry out your wishes during probate after your passing. Creating a will protects your wishes after your death-for your assets and children.
CONS of having a will
1. Often Wills Must Go Through Probate
Having a will can reduce the amount of time spent in court, but it does not eliminate it. For the will to come into action it needs to be submitted to probate court, where the judge then ensures the will is valid. Probate is a time consuming and expensive matter that people often try to avoid, and it could possibly take months and perhaps years before your loved ones see the inheritance you intended to leave for them.
2. Wills Are Not Private
The probate process that occurs in court is not just lengthy and expensive, it’s also highly public. Following probate, the will becomes a part of the public record, and anyone could view it by accessing it from the given county clerk office if they needed to see it.
The will exposes private assets, debts, and beneficiaries. The publicity of the document could create tension within your family and lengthen the amount of time it takes before distributing assets. Your loved ones may even get contacted by other agencies, debt collectors, or property buyers due to the public nature of the will.
If you are hesitant about the public nature of the will you may want to think of having alternate options.
3. A Will Can Be Contested in Court
Because probate is such a public affair a will may be contested. Anyone could file a lawsuit to challenge your wills validity if they believe that; the will is missing important information, you weren’t coherent while signing the will, or someone had coerced you into writing the will.
Challenging a will is uncommon, but if it were to happen it would add significant time before your family gained their inheritance. A way to negate this is to talk to your family while beginning your estate planning journey. If they are aware of your intentions behind your will it is less likely they will contest the will.
Is a will the correct choice for you?
If you are worried about someone contesting your will, court costs, or the publicity of the will, but still want to have control over what you leave your family, and want to ensure your loved ones avoid probate, a trust is likely the choice for you. Estate planning is a hard topic to understand fully, and it’s even harder to understand it if you don’t have a good grasp on what works for your own plan.
We know that creating a will feels very daunting at first, but you need to remember that you’re not doing it alone. You will have an attorney by your side to help you navigate the correct plan for your estate.
If you have questions about Estate Planning or Probate seeking experienced legal guidance can help you avoid costly mistakes and provide lasting peace of mind. We here at the Law Offices of Ana M. Pace can give you that peace of mind. Proper planning today protects your family tomorrow.