Mar 07, 2013
By Rick Law, Senior Estate Planning Attorney in Suburban Aurora, IL
Probate is the long and expensive courtroom process of getting a will approved by a judge.
Contrary to what many people believe, wills do NOT avoid probate. I imagine that somewhere along the way, someone said that if you die without a will, your estate goes through probate.
This is true.
However, from that must have come the assumption that if you die with a will, your estate will not go through probate.
This is false.
Some attorneys will tell their clients that they don’t need a trust and that they should just do a “simple will” or “sweetheart wills.”
The simple will for the individual passes his assets to his named beneficiary and nominates who the person wants to be his or her executor. “Sweetheart wills” refer to wills where the husband leaves everything to his wife and the wife leaves everything to her husband – and then the surviving spouse leaves the assets to the children or other named beneficiary.
Why would an attorney recommend a document that will take you through probate when he could do a trust that would avoid probate?
Perhaps because some attorneys think of trust planning as having to do with avoiding inheritance (or death) taxes on the estate. Also, the truth is that if your attorney gives you a will (and graciously offers to keep the originals in his safety deposit box), he is almost guaranteed that he will get your future business whenever you want to make changes to that will, and he will often make a large fee when your family comes back to him to probate your will.
Wills are “death planning.” In a previous blog, Kathy Motley told you about the daughter who told us she was her mother’s “executor” under the will, and we had to break it to her that she has no power under this document until her mother dies. The truth is, even if her mother was deceased, the daughter would not be the executor until she is appointed by the court, A “named executor” is simply nominated in the will and must petition the court to be appointed the executor, and must have “letters of office” to act.
The point is that the “testator” must die for the will to be in force.
Sometimes people ask if they should “file” or “record” their wills. We explain that the will has no power until the death of the testator, and that is why it can be changed with a codicil (a document changing a part of the will), or it can be completely redone, and in that case the old one is revoked. Almost all wills begin by saying, “I revoke any prior will or codicil…” If there are two wills in existence at the time of a person’s death, and both are “valid” wills (which means that they meet all the criteria required by state law such as two witnesses and a notary public), the court will presume that it is the most recent one that dictates, even if it failed to state that any prior will is revoked.
When you do an estate plan that has a trust, you also get a companion will. However, it is not a “simple will” or a “sweetheart will.” It is what is referred to as a “pour-over will.” This will states that the person has a trust, and in the event that he has assets at the time of his death that are in the person’s name and not in the trust, the person wishes the executor to “pour these assets over” into the trust.
If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Appointments available in Chicago, Aurora, Oak Brook, Schaumburg, and Joliet. Call 800-310-3100 for your free consultation now!
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