Wills and probate are an emotionally fraught area of law, since it mixes grief, drama and money. Common knowledge about wills and probates are very often wrong, since the average person gets more information about it from television dramas and rumours than actual experience. Here are nine common misconceptions about wills and probate.
Everything Goes Through Probate
Not everything goes through a probate process. For example, items that someone gives away during their lifetime are typically considered gifts; if those items are still listed in the wills as going to someone else, the act of the person during life trumps the will unless there is a reasonable argument the giver wasn’t mentally competent enough to make that decision.
If someone sets up and funds a trust during their lifetime, whether it goes to heirs or charity, those assets are no longer part of their estate to be distributed.
Be careful about trying to promise property to different people. If you promised something to someone, they can challenge the will later if the legal document says something else.
My Main Heir Must Be the Executor
While it is common for a surviving spouse or eldest surviving child to be the executor of an estate, this is not a matter of law but tradition. You can select a more competent relative to be executor. And you can specify in your will that an attorney will be your executor instead of a family member.
This can actually reduce the stress your family faces, as someone else works through all the legal and financial matters in addition to the pain of your loss. Note that you should list a backup executor or even a third choice, since someone who predeceases you or is disabled cannot be your executor.
Don’t make siblings co-executors, either intentionally or indirectly because the courts just name the surviving children as executors. There’s too much potential for creating animosity.
Die Without a Will, the State Gets Everything
If you die without a will, it is true the state will decide who gets what. However, this is determined by your family situation at the time of passing. In general, your property will be divided among your spouse (married, estranged or divorced after the will was written) and children or next of kin as determined by existing laws.
You want a will in place if you want the property to be divided some other way, whether giving part of your money to charity or excluding particular family members from inheritance. It is also an act of kindness to have a will, so that your family doesn’t have to go to court to be able to complete probate and resolve all issues with the estate.
The only time the state gets everything is if you die without any heirs and there are assets left over after paying all of your bills.
My Debts Die with Me
When you die, your estate is held liable for your debts. If there is more money owed by the deceased than assets, the remaining debt will likely be forgiven but only after everything in the estate is liquidated to pay the bills. It is possible that heirs may take on debts in exchange for property, such as a surviving spouse remaining on the mortgage while inheriting the house.
You should take steps to document everything you own and everything you owe so that paying creditors is as simple as possible for your heirs. And consider how your heirs will be supported, if reliant on you, since anyone who relied on you for financial support can file a claim against your estate.
I Can Challenge the Will at the Reading
A common scene in dramas is the family being read the will, and someone challenges a bequest then and there. You can certainly verbally express your displeasure at what you do or do not receive when told what the will says, but this is not a legal challenge to the will.
There is also the fact that the executor doesn’t have to have everyone present to hear the details of the will, though the contents of the will should be available to anyone involved in the case. So, there may not be a family gathering where the will is read at all. Most probate attorneys will send a copy of the will to everyone involved so they can read it for themselves.
Probate Eats Up the Estate
Probate costs are a cost, and you should minimize the costs by having a well-written will in place before you die. Probate disputes are legal costs that will eat into the estate or the pocket books of those who are challenging the will.
You can reduce the odds of this happening by letting your family know now what you’re planning on doing regarding your assets. You can also reduce the risk of fights by writing conditions into the will in which a troubled family member may or not inherit. For example, you can explicitly exclude a problematic adult child but leave open that their legitimate, biological children can inherit. Now you’ve limited their options for contesting a will because you’ve stated outright that they are not to inherit while providing something for their heirs.
Disinherited heirs, especially disinherited heirs by law, can still challenge a will however. You can find more information on who has the grounds to contest your will on the-inheritance-experts.co.uk – by learning about how wills are contested, you will be able to make sure that your will is clear, so your loved ones won’t run into this issue in the future.
My Live-In Partner Will Inherit
Spouses of either gender will be first on the list to inherit your property if you don’t have a will. However, boyfriends and girlfriends are not going to inherit anything unless you explicitly state such in your will. It doesn’t matter if you call them a fiancé or common law spouse; marriage certificates are the legal documents that give them the legal right to inherit from you.
The only possible exception to this is if you have children together; in this case, the children together will probably inherit from you, and the common law partner may end up the trustee of assets on behalf of the children.
You can avoid the legal problems this causes by either getting married or having a will drawn up.
I Don’t Need a Will
If you have assets you want distributed in a particular way, you need to have a will. If you have family dependent upon you, you need a will and probably life insurance as well. If you have specific wishes you want carried out at your death, such as donating your body to science, you should have a will.
Some people think that being married eliminates their need for a will, since their spouse will probably inherit everything. In reality, you should have a will to ensure that your spouse inherits everything, since your assets might be split between them and your parents or siblings.
I Can Challenge a Will at Any Time
It isn’t fair to the heirs to leave open the possibility of legal disputes for years. This is why there are statutes of limitations for contesting a will just as there are for reporting crimes or filing lawsuits. If you don’t know how to contest a will but are considering doing so, contact a probate expert for assistance. If you wait too long, you lose your ability to contest the will at all. Depending on the situation, you may only have a few months after probate is granted in which to file a challenge. Most probate cases are closed within a year.
I hope we were able to dispel some of the myths and misconceptions around Wills and Probate. This clarification should be able to get you prepared in the case you need to draft or contest a will somewhere in the future.