Wills and Probate

Wills and Probate

Wills are the basis for estate planning yesterday and today.  They were first introduced in medieval England and have been used ever since.  Modern wills provide the probate court with basic instructions of how a deceased person (decedent) wanted to distribute his or her assets and property to heirs and beneficiaries.  Everyone who is concerned about what will happen to his or her property and assets after his or her death should have a up-to-date and valid will.

What is in the average will?  In a will, you will describe who you are and detail your rights to the property you are giving away.  There will be a description of the property and assets in the will and exactly who you want to have what upon your death.  Wills are easy for anyone to draw up and while an estate planning attorney is recommended, they are not really required to write a valid will.  Many of the probate courts will accept even simple, handwritten wills that are clear to understand.  However, there are now many internet and software companies who are marketing programs that will help you create a will at home on your home computer.  Some states have been known to permit an oral will in probate court, but this is rare and a written, formal will is the safest bet to ensure that your property ends up where you want it to.

There are many reasons to make sure your will is properly drawn up, but the main one is that a will, once it comes before the court, can be made invalid for a number of reasons.  A will can be invalidated for several reasons, including improper execution, the grantor was not mentally competent and therefore did not understand what he or she was doing when writing the will, or the will was written under duress or as a result of undue influence.  If the will is found invalid for one of these reasons, then the estate will enter probate court as if the decedent had died "intestate," or without a will.  At that point, the probate and inheritance laws of the state would decide how to distribute the decedent's property among the heirs and beneficiaries.

The process of presenting the estate in court along with the death certificate of the decedent and other proper documentation to settle the estate is called probate.  The word "probate" comes from the Latin meaning "to prove."  Groucho Marx, the famous comedian's probate case lasted many years and was particularly expensive because of his celebrity status.  No matter who the decedent is, each and every estate, will or not, must go through the probate process.  Probate can tie up the assets and property of an estate for approximately 9 months to 2 years, and can cost anywhere from 2 to 5 percent of the value of the estate. There is much information out there on how to avoid the pitfalls of the probate process and the expense and time involved in it.

Although you need to have a will in case of your death, wills do nothing for you while you are still alive.  In case you ever become incapacitated for any reason, you should have a living will which will name someone to act with your power of attorney or as trustee to your affairs who can make decisions for you and your property and decide about your proper medical care. The sad fact is if you do not take care of this matter and you die, there may be little left from your original estate to leave to your family.

Each family situation is unique.  For some, a basic will is enough to take care of future plans.  You can use will software or draw up your own will to let the probate courts know to whom your assets should be given.  However, if your estate is complicated by various properties in several states or complex assets of any sort, you would be better served to consult a professional estate planner or attorney who can safeguard that the majority of your assets will pass to your heirs and beneficiaries.