When people talk about estate planning, they often think of a last will and testament, or "will" for short. This is a very old and traditional method for giving instructions about the disposition of your property after you pass away. However, there are many myths about wills and what they can do, and sometimes people's families are surprised to learn that even a simple will doesn't necessarily make things simple when a person has died. There can be numerous legal hurdles and expenses which can delay or even prevent the distribution of your estate. It's important to understand these risks and the expected future costs when deciding whether to use a will for estate planning.
When people make a will, many assume that their executor will be able to carry out their wishes simply by bringing the will to, for example, a bank or the county real estate office. They believe the executor can obtain and distribute their property without involving the courts. Unfortunately, that is not how it works. No one will let the executor transfer your property to the heirs of a person who has died unless the executor also has a court order. In order to get this court order, the executor must bring the will to court (usually with the help of one or more lawyers) and open what is called a probate action. This means that your estate will have to cover the legal fees and court costs associated with getting this court order for the executor. In addition, there are special legal and procedural requirements such as giving public notice and waiting for creditors to come forward before the court order can be given. This generally takes months and sometimes years to accomplish. It also takes place completely in public, meaning that the will becomes part of the public court record where anyone can view it. In reality, a will is not a set of instructions for your executor. It's actually there to instruct the judge.
Despite the complications mentioned above, there can be good reasons for using a will for your estate plan. Parents of young children may wish to use a will to nominate a guardian in case they pass away while any of their children are still minors, and court involvement is usually required if there are surviving minor children anyway. Also, some people might prefer the legal scrutiny that comes with probate, to ensure that their executor and their family are all on the same page about the deceased person's wishes. It also can be easier to make and maintain a will, versus other estate planning options. Ultimately, a will is a fine way to give instructions to your executor and the judge about what should happen with your property, but it is important to understand that this approach leaves plenty of homework and legal expenses for those you leave behind. There are alternatives that may better suit your unique situation.