Everyone has heard of the “last will and testament.” Most articles written on these topics, however, often presume that everyone knows the basics of a Will. But, in reality, many of us don’t – and with good reason – as they’re rooted in complicated, centuries-old law.
Let’s face it, if you’re not an estate planning attorney, these concepts tend to remain merely abstract ideas like a Picasso painting. So, if you’re “fuzzy” about wills, know that you are not alone.
Let’s take a minute and define what a “will” is: A will is a written document that is signed and witnessed. A will is considered a “death” document as it only goes into effect when you die. A will:
- provides for the distribution of assets owned by you, but not assets directed to others through beneficiary designations (e.g. life insurance or retirement benefits)
- sends assets that you own in your individual name or payable to your estate through the probate process
- allows you to appoint permanent guardians for your minor children
- names the person you wish to settle your estate (e.g. executor or personal representative)
- doesn’t always include protective trusts for beneficiaries and tax planning because many wills are often simple 2-3 page documents
- permits you to revoke or amend your instructions during your lifetime
- must be settled during court proceedings after death called probate
The Probate Process
What two things must happen in order for a Will to be a useful legal instrument?
- The person who wrote the will must die. The person who wrote the will is called the “testator” or “testatrix;” and
- A judge must read the will and decide that it is a valid legal document that was validly executed.
In order for the Will to be useful, it must go through a probate process. The term “probate” – which literally means “proving” – refers to the process wherein a decedent’s will must be authenticated, outstanding legitimate debts paid, and assets transferred to the beneficiaries.
The downside is that probate can take a long time – even years – it’s expensive in many places and the entire process is completely public, meaning your nosey neighbor Nancy and evil predator Paul both know exactly who got what and how to contact them. In virtually all cases, the only upside of probate is that creditor claims are cut off.
- Probate Required? If you use a will as your primary estate planning tool, you own property in your individual name, or property is made payable to your estate, probate is required.
- Probate Can Be Avoided. Ask your estate planning attorney about how probate can be avoided.
Check out our website by clicking here to learn more. We enjoy helping our clients establish a last will and testament with professional and comprehensive legal advice. Our clients in Georgetown, Texas (Sun City), San Antonio, Texas, and all over New Mexico rave about how much better they feel knowing that their legacies will be legally enforceable. Their families won’t suffer the confusion and chaos that follows death of someone without a last will. Call our office now at 210-530-4278 or 830-488-7614 and we’ll schedule a time for you to find out whether we’re the right law firm for you.