APRIL
14, 1997 VOLUME 4, NUMBER 41
Where There's a Will, There's Often a Way To Get It Wrong
Most people understand the basic principles behind making out
their Will. Experts who deal with estate planning, however, are
frequently surprised at how common and how persistent certain
myths about Wills and probate can be. Some of the more prevalent
misconceptions:
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The Myth: If you don't make out a Will, the government
will take your money.
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The truth: If you don't go to the trouble of saying (in your
Will) who you want your estate to go to after your death, and
who should be in charge of administering it, the government will
make some assumptions about what you intended. In fact, those
assumptions are usually right. For most people without Wills,
the entire estate will pass to a surviving spouse. If there is
no surviving spouse, the estate will go to children in equal shares.
The person given power to administer the estate in the absence
of a Will is usually the spouse or one of the children of the
decedent.
One big problem for some people: under Arizona law, if you have
children who are not children of your surviving spouse, the default
provision will split your estate between your spouse and children.
The moral is obvious: Wills are particularly important for those
who are in second marriages.
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The Myth: If you move to a new state, you need to make
a new Will.
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The truth: Every state will honor Wills executed in another state
(usually, even in another country). However, when you move you
usually change your life in other ways at the same time, and it
is appropriate to have your estate plan reviewed. In the meantime,
your Will remains valid.
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The Myth: If you write a Will, you won't have to go through
Probate.
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The truth: Probate is the court process by which your wishes are
determined. The purpose of making a Will is to provide the probate
court details of your wishes. While a Will makes it easier to
determine those wishes, it does not avoid the process at all.
In fact, the probate procedure will not even be made less expensive
or faster in most cases.
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The Myth: If you want to disinherit someone, you need to
leave them one dollar in your Will.
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The truth: Nothing requires that your Will leave any minimum amount
to any relatives. The most efficient way to disinherit a child
or spouse is to identify them (so no one can say you were so confused
you forgot you had children, for example) and indicate that you
are not leaving them anything. Leaving a dollar to a disinherited
child puts your personal representative (executor) in the difficult
position of having to secure a receipt for $1.00, and of having
to account to the child who you intended to leave out.
There are laws in most states which make it impossible to completely
disinherit spouses and minor children. In Arizona, for example,
the surviving spouse is entitled to receive a minimum amount (usually
$37,000) from the decedent's estate regardless of what the Will
provides. But leaving a $1.00 bequest to a surviving spouse doesn't
change that principle, and the same entitlements do not apply
to adult children in most states.
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The Myth: Wills are easily contested, so it is difficult
to ensure that your wishes will be carried out.
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The truth: A tiny fraction of Wills are ever contested. In fact,
most Wills never even get submitted to the probate court (since
so many people use joint tenancy, beneficiary designations and
trusts to avoid the probate process). Only those who would inherit
under an old Will, or under the law providing for those who make
no Will, would have any incentive to contest a Will in any event.
In a future Elder Law Issues, we will deal with common
misconceptions about Living Trusts.
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