I have heard all of these misconceptions mentioned, including just today.
- The attorney who prepared my will must handle my probate. No. Many estate planning attorneys prepare wills with an eye toward being called upon to handle a probate if the client dies, but there is absolutely no requirement that the drafting attorney who prepared your will must handle your probate. This includes if the attorney who prepared your will holds your original will for safekeeping.
- My will dispenses with all of my property. Some documents override a will. If you have a will, and you leave all real (house, land) and personal property to John, yet you have a deed that is held somehow with Jane, Jane will get the house because she is on the deed, not John, even though your will gives it to John. Generally, titled and deeded assets go to the person listed on the title, or beneficiary designation, or deed. “I leave everything I own to Bob.” At my death, I have a life insurance policy that lists Joanne on the beneficiary designation. Who gets my life insurance? Joanne.
- I had a trust prepared so I don’t have to worry about probate. It is so frustrating to see clients come to me with trusts they had prepared (and paid a lot to have prepared), only to learn that the trusts are unfunded. What the client has, then, is a stack of papers that likely will not do what was intended. Funding your trust involves titling or deeding assets to your trust. You can accomplish this by naming your trust on beneficiary designations so that asset goes into your trust at your death, or having a “transfer on death affidavit” prepared that puts your home into your trust at your death. For example, you would have a deed prepared granting your home from Jenny Jones to “The Jenny Jones Revocable Living Trust.” However you accomplish it, a discussion of “funding your trust” should be a critical part of planning from your attorney. If you have a trust prepared and then never prepare a new deed putting your home into your trust, and you die, your home will likely require a probate to be opened, defeating one of the important reasons for having a trust prepared (avoiding probate, privacy).
- A will (last will and testament) is different than a “living will.” A last will and testament is what we think of as a “will”–we state who is to inherit what, we name a guardian for our kids if they’re young, we name an executor. On the other very different hand, a “living will” is a healthcare document stating whether we want artificial life support if (1) we are terminally ill and death is imminent, or (2) if we are in a permanently unconscious state (i.e., brain dead). This is popularly known as “pulling the plug.”
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