Many people come to an attorney believing they need a will. They are probably right. However, often the reasons they think they need a will are based on myths. Here are some prevalent myths we want to bust today.
Myth #1: WITHOUT A WILL MY ASSETS GO TO THE STATE
This is a common misconception about estate planning. The truth is, the state does indeed have a plan of distribution for your assets if you do not have a will. But that plan is not for the state to take your assets. Rather when you die without a will, that is dying intestate, the state laws provide that your family will inherit the property. Who the state considers family, and how much they will receive, depends on a number of circumstances. But the only time the state gets an estate is if there is no family that can be found, and then it goes into the state’s unclaimed property fund.
Myth #2: A WILL AVOIDS PROBATE
Actually, the opposite is true. The only way a Last Will is enforced is through the authority of the probate court. That is why I say that “A will is a ticket to probate.” If you want to avoid probate, you need to plan so that you don’t have any probate assets, i.e. assets that your will controls. Assets that avoid probate are assets in a revocable living trust, assets that have a beneficiary designated such as life insurance, or assets held in certain types of joint ownership, such as joint tenancy with rights of survivorship. Note that “joint tenancy” isn’t just owning it with someone else, it is a special type of joint ownership that usually has to be specified on the title.
Myth #3: A WILL HAS TO BE WITNESSED AND NOTARIZED
In most jurisdictions, a Will is valid if it is signed by and written entirely in the handwriting of the testator (person who makes a will.) This is called a holographic will, and it need not have any witnesses or have the signature notarized. That is not to say that it is a good idea to just write out your will on a napkin. Without consulting with a qualified estate planning and business lawyer Arvada CO relies on, the will may well cause more problems than it solves, like it did for no other than a Chief Justice of the United States Supreme Court. If he couldn’t get it right without proper legal counsel, do you really think you can?
Thanks to our friends and contributors from the Law Offices of Karen Brady, P.C. for their insight into myths about Wills.