If someone does not do research into estate planning, such as wills, trusts, or probate, then they might just assume information based on what they have heard other people say. There are many myths and misinformation in regards to wills and probate. Making sure you get information from a knowledgeable source, along with seeking information from a lawyer will save you confusion or potential harm in the long run.
A common misconception that a lot of people have is that if someone dies without a will then the state gets everything. This is not true. The creation of a will definitely be a way to protect your assets, and you definitely should understand that importance of having a will. If you die without a will, your state’s laws will be what determines what happens. Every state has its own set of laws that vary. Usually what will happen is your spouse and children are the first to inherit. Your assets will go to the state if you do not have a will, but that is usually only when relatives cannot be found. The terms used for this is called “escheat”. It is very rare. Even though the state won’t get your money, you are still going to want to decide who in your family or friends circle gets what. The only way to have specific people get specific assets is through a will.
Another common misconception is that it takes years to probate an estate. Usually this is not the case. It usually does not take years to resolve. The delay which can occur is the time frame mandated by the state law. allows creditors time to file claims. Again this is another situation where it varies from state to state. The time difference is different. This time period will occur when there is notice of the probate proceeding. Once this proceeding is over, the estate can be closed once the representative has gathered all of the assets, paid any debt, as well as taxes. Usually it can get finished within a year. It may take months for different parts of the process, but it shouldn’t take years and years. Usually besides the normal delays in the process, the only reason why it may take much longer is if there are family fights, the estate is very large, or because of ongoing income. These cases will make the process a lot more complicated. If you want to avoid all of this, then you may want to do research into ways that you can avoid probate. This will save your family from having to go through the long process.
Another common myth is that the cost of probate will eat up the estate. There are plenty of stories about how expensive probate is. Although there are horror stories, this isn’t usually the case. Many estates do not even require a probate proceeding. This usually will happen if the person who owned the assets had these assets under their name only. Depending upon the value of your assets, you may even be able to take advantage of probate shortcuts. If this is not the case, then there is still no need to worry. The cost will likely be less than 5%. There are 2 exceptions to this. These are the cases in which you want to be aware of, that way you don’t end up paying a dramatic price.
In some states, lawyers will charge a percentage value of the estate fee. This is rather than charging a flat rate or an hourly fee. This could end up being a lot of money depending on the value of the estate and the percentage.
Costs can also raise if someone accuses the executor or misconduct.
The key to avoid a situation where you are paying a lot is to talk to your lawyer. When you are deciding on a lawyer, you will not want someone who charges high percentage fees.
Many people may think that they do not have any assets to give. They may also think that they don’t have anything to give to their spouse. Their focus might be to give whatever they have to their kids. This can work out fine, but if there is a surviving spouse, that spouse can refuse those assets. They may choose to take an elective share. You and your spouse will definitely want to discuss your plans before making any decisions.
The final myth that the oldest child may have, is that they are entitled to be the executor of their parent’s estate. Being the oldest does not carry any weight when it comes to serving as executor. Usually someone who has a will names someone of their choice as the executor. The court will appoint this person to be executor. If the person named does not want to serve, then the court will appoint someone else. If more than one child wants to be executor, then they can agree to act as co-executors. This is often not a recommended solution though.
If you feel that you should be the executor, then that is a decision your parents need to make while they are still alive. Have a discussion with them, see how they feel, but understand that they are making a decision based upon what they think is best.