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Estate Planning and Probate FAQ’s

  • I have a Will so my estate won’t go through probate
    • Not true. Assets pass through probate when the title needs to be transferred. It doesn’t matter if you have a Will or not. Examples of assets that don’t pass through probate are assets that are jointly owned with rights of survivorship, assets with beneficiary designations, and assets titled in a Trust.

 

  • My Will controls the disposition of all of my property
    • Not true. You Will ONLY controls disposition of probate assets.

 

  • I am married, so I have legal authority to make all decisions for my spouse and my spouse’s assets
    • Partially true and partially wrong. Spouses have equal control over some joint assets, such as bank and brokerage accounts. Spouses do not have control over jointly owned real estate – for instance, if your spouse is incapacitated due to illness or injury, you cannot re-finance or sell your home without a valid durable power of attorney or a court appointed guardian. Additionally, spouses do not have any access to accounts solely titled in the other spouse’s name.

 

  • Estate Planning is for wealthy people only
    • Couldn’t be more wrong. At a minimum, everyone should choose who will make medical and financial decisions for them by way of a Health Care Directive and Durable Power of Attorney, and many people should have a Will and even a Revocable Trust in place to ensure that your hard earned assets pass to the appropriate people outside of the lengthy and expensive probate process.

 

  • Estate Planning is for old people
    • Sadly, you don’t have to be old to become ill and/or pass away. The idea is to have documents in place “in case” tragedy strikes.

 

  • I am not wealthy enough to have a revocable trust
    • One of the main purposes of a revocable trust is probate avoidance. It also gives creditor protection to your beneficiaries, and it provides for contingencies in the event a beneficiary should predecease you. Wealth is definitely not a requirement for a revocable trust.

 

  • I have access to my college student son/daughter’s medical information because I still support them financially and I’m paying for college
    • Wrong – Once they turn 18 years old they are adults and parents have no access to their medical information due to HIPAA.

 

  • My kids all get along so I know there won’t be any problems after I die
    • If only this were true . . . . . . . .

 

  • I think I need an irrevocable trust
    • Probably not. Most people need a revocable trust. Irrevocable trusts are used in certain cases, but the majority of people want to retain the power to modify or revoke their trust.

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