I’ve noticed in my legal practice that many people mistakenly believe that a Will can help prevent probate. While I recommend that everyone have a Will, a Will is not going to prevent your estate from being probated. A Will simply prevents the estate from being distributed according to the intestacy laws of your home state. Probating an estate can take months or years and the process can be confusing and expensive.

 

What is a Will? A Will is the legal instrument that permits a person, the testator, to make decisions on how their estate will be managed and distributed after their death. A Will enables a person to select their heirs instead of allowing the state to determine who receives the assets of your estate. When executing a Will a person decides who will manage the estate, the executor of the estate, to distribute the assets in the estate according to the instructions and desires of the deceased person. A Will is also used to name the individual or individuals who should be allowed to serve as guardian of any minor children in the event of your death.

 

If a person dies without a Will we say the person died intestate. Intestate means without a will. If you die intestate in the State of Missouri, the law states that your assets should be distributed as follows:

If you die intestate with: here’s what happens:
·         children but no spouse ·         children inherit everything
·         spouse but no descendants ·         spouse inherits everything
·         spouse and descendants from you and that spouse ·         spouse inherits first $20,000 of your intestate property, plus 1/2 of the balance

·         descendants inherit everything else

·         spouse and descendants from you and someone other than that spouse ·         spouse inherits 1/2 of your intestate property

·         descendants inherit everything else

·         parents and siblings, but no spouse or descendants ·         parents and siblings inherit your intestate property in equal shares
·         parents but no spouse, descendants, or siblings ·         parents inherit everything
·         siblings but no spouse, descendants, or parents ·         siblings inherit everything

Only assets that are owned by you solely, or in your name only, are subject to the laws of intestacy. For example, if you have a checking account and you are the only authorized signer, when you die that account will be subject to probate and the laws of intestacy.  Many people assume that adding a joint owner to their accounts is the best answer, but giving someone access to your accounts invites a whole new set of problems. What if the joint owner isn’t trustworthy? The joint owner has the ability to withdraw funds from your account, without your permission. What if the joint owner is sued? Your funds could possibly be seized to satisfy a judgment or lien that the joint owner owes.

 

How can you avoid probate? There are some assets that don’t go through your Will, and aren’t affected by intestate succession laws. Here are some examples:

 

  • property you’ve transferred to a living trust
  • life insurance proceeds (if a beneficiary is named)
  • funds in an IRA, 401(k), or other retirement account (if a beneficiary is named)
  • securities held in a transfer-on-death account
  • payable-on-death bank accounts
  • vehicles held by transfer-on-death registration
  • real estate held by transfer-on-death or beneficiary deed, or
  • property you own with someone else in joint tenancy or tenancy by the entirety.

 

These assets will pass to the surviving co-owner or to the beneficiary you named, even if you don’t have a Will.

 

For most people without a living trust I would recommend a Will and a durable financial power of attorney. These two documents used in conjunction with transfer on death or payable on death designations for your accounts, vehicles, and real estate can help prevent probate. However, everyone’s situation is unique and a consultation with an estate planning attorney can help you best determine the tools you need to accomplish your estate planning goals.

by Rebecca Van Zandt Hirshfield, Esq