As a Brandon estate lawyer, I often meet with clients who believe that a Last Will and Testament is the “end all be all” of estate planning. What I often tell them is that a will is just the first step. Let’s discuss what a will does, and the limitations of wills that may require the need for additional planning.
A common misconception is that having a will avoids probate. It does not. A Last Will and Testament is used to tell a probate court who you want to be in charge of handling your estate and who gets what after your death. After a will has been submitted to the probate court, it can be contested by your heirs. Ultimately, a judge in the probate court can determine what happens to your estate rather than your Last Will and Testament. If there is a chance for family discord, relying solely on a will to ensure your legacy is passed on the way you wish may not be the best option. If your estate is relatively simple and everyone gets along, a will may be a good option to meet your needs.
A will can be used to tell the probate court who you want to take care of your minor children. Handled through the probate court, this person would become the legal guardian of your minor child(ren.) They have to report to the court annually to ensure that your children’s needs are being taken care of. However, additional planning may still be necessary to deal with the inheritance you plan to leave behind for your kids. For example, it may be necessary to set up a trust so that someone of your choosing is managing the money. A trust will also prevent your kids from receiving the balance of their inheritance in one lump sum at the age of 18.
Another pitfall of relying solely on a last will and testament for your estate planning is that probate court records are available to the public. Creditors and predators will have access to information about your estate via court records. If you or your beneficiaries have issues that could complicate your estate, keeping assets out of the probate court is the best idea. You may want to consider a revocable living trust instead.
A last will and testament also does not address what to do if you should become incapacitated or disabled. Your first step in the estate planning process should be creating durable powers of attorney. A general durable power of attorney and a durable healthcare power of attorney addresses how to take care of you and your things if you should become unable to do so for yourself.
What’s most important is that your estate plan works for your family’s unique situation. In some cases, a will is sufficient to achieve an individual’s goals. In most cases, however, there are additional layers of protection that should be considered. Our Brandon estate lawyers can help you discover the best planning solutions for your family. To schedule a consultation, contact us at (813) 438-8503.