Have you just finished creating your last will and testament? Are you thinking that when you pass away your estate will not have to go through the probate process because you have created a detailed will? It is absolutely important that you have a will in place, but having a will does not necessarily allow your estate to avoid probate. This is one of three common mistakes we may see when probate is not understood.
1. I have a will so now my estate will avoid probate. As stated above, this statement is a mistake, your last will and testament does not guarantee your estate will avoid probate. Your will is a set of instructions for your personal representative, who you selected when you created your will. Your personal representative will know how you want all of your assets distributed. Those assets may include your house, your vehicle, your bank or brokerage accounts and any of your personal items. Even though you have written these instructions down in your will, the assets may be subject to probate. Your personal representative will now begin the task of probating your will, and this may take time and money from your estate. However, if you want to keep your assets out of probate, you may consider other estate planning tools you can put in place.
2. I have put everything into a trust. While creating your will, you learned that a revocable trust may be a good way to avoid putting your estate through probate. You, therefore, created a revocable trust and put your assets into the trust. With your trust in place and funded with all your assets you are worry free. Unfortunately, this may be a mistake. Often people put all of their assets into a revocable trust at the time the trust is created. However, as we all know, our lives change all the time. Perhaps you decided to sell some of your assets and/or acquired other assets and forgot to make these changes in your trust. This is where the mistake occurs, only assets in the trust will avoid probate. Any assets you may have acquired and forgot to put into the trust will have to go through probate.
3. Having the same information in my will and trust does not matter. This may be a big mistake. Be aware that If what you wrote in your will does not match the terms of your trust, then the trust may prevail. Also, if there seem to be any inconsistencies the probate court may have to make a final determination.
We know this article may raise more questions than it answers. We encourage you to contact us and schedule a meeting with attorney Alan Hougum today.