1. Wills avoid probate. False! In fact, wills are designed to go through probate. A will states your wishes, but your executor may need a court order to be able to take action. Going through probate court will always add delay and expense. Most probates last at least a year or more. A living trust is often the best solution to this problem.
2. Your will and your assets remain private. Wills are public documents, which is how we all know that 20% of Michael Jackson’s estate went to charity. However, we don’t know which charities, because Jackson had a trust set up, and trusts remain private.
3. A will prevents fighting over assets. This could not be further from the truth! Wills are the most contested legal document in our courts. And just because you request something in your will, does not mean it will be carried out. Many estates have been drained of all their money because of long legal battles over wills.
4. A will helps you avoid taxes. A will does nothing but help distribute your property. If you are concerned about the complicated taxes surrounding death, estates and what you leave behind, it’s best to consult with an experienced estate planning attorney who will do more than simply fill in the blanks of a simple will for you.
5. Estranged family members do not need to be notified of probate if the will excludes them from inheritance. In Illinois, your next of kin must be notified as part of the probate process, even if they are not getting anything under your will. In fact, when they are notified they are reminded of their right to challenge the will and told the deadline for filing their challenge. Plus, they are given a sample of the form to use!
6. A will from one state is not legal in another. This myth is not true — your will should be valid in another state, if it was valid when it was signed. However, each state’s laws are different and those different laws could impact how well your will works. For instance, there may be different real estate laws or differences in how each spouse has rights to the other’s assets. Therefore, it is best to consult with an experienced estate planning attorney in your new state, rather than leaving things to chance with your old will.
7. A will helps when you become physically or mentally incapacitated. A will does nothing until death. It is a death document. When you become physically or mentally incapacitated, you need powers of attorney or healthcare directives. A trust is the tool that can provide more planning opportunities and the ability to be more detailed about your wishes during disability.
8. The cost of your estate plan is only the cost of drawing up the documents. Many people focus on the costs now, but ignore the costs later. But you should consider all of the costs. A simple will now may result in more costs later. An effective plan now, possibly including a living trust, may cost more now but will save expenses later and make it easier on your family. It’s a dirty little secret that over the years many estate attorneys make the bulk of their money after death – once the client is gone and they have to fix what they didn’t do right to begin with! A good estate plan will anticipate any unique issues your situation presents, and put protections in place to make sure it’s smooth sailing for your family after you’re gone. (At least where your assets are concerned.)