The Most Common Estate Planning Myths: "I Have A Will, So I Avoid Probate, Right?"

Let's just preface these myths by saying that no one expects everyone understand everything about Wills and Estate Planning. Many people find it intimidating to meet with an attorney, in part, because don't know what to expect. This is one reason lawyers often offer a "free consultation" so that the client can get familiar with the attorney and the estate planning process before spending any money with the attorney. To help ease your fears of the estate planning process, let's discuss some of the most common estate planning myths.

Common Myths -

1. "If I have a Will, I avoid probate."

2. "My mom and dad didn't go through probate so I shouldn't have to either."

3. "My spouse is entitled to my assets when I die."

4. "I am the spouse or parent so I can make their decisions when they can't."

5. "I don't need an estate plan because I don't have a lot of assets."

Let's look at the first, and most common, of these myths:

1. "If I have a Will, I avoid probate."

False: Probate is a legal process that proves the Will of a deceased person is valid, so their property can be transferred to the beneficiaries named in the will. So, basically, if you have a Will it must go through probate to transfer the assets. Is probate a bad thing? Most people want to avoid probate to so avoid the pubic courts (i.e. keep the assets and beneficiaries private) and save the added attorney costs associated with probate. This is handled better by a Revocable Trust.

Do all estates have to go through probate? No. How assets are titled and the size of the estate will determine if probate is necessary. Nebraska offers smaller estates a simplified process by "Small Estate Affidavit" to avoid probate when an estate has less than $50,000 of personal property and $30,000 of tax assessed value of real estate.

Is probate a bad thing? Again, not necessarily. Niel Nielsen, an attorney and partner at Carlson & Burnett LLP gives this view:

If you are younger with a smaller estate, the Will is the way to go and probate will be fairly straight forward. If you are older, and your estate is more complex, you will be better served by using trusts to manage the distribution of your assets upon death. The Will/Probate route is easier on the front end, but more time consuming and complex on the back end when the Will must be enforced. The Trust route is more complex and takes some time on the front end, but at death, the administration is easier.

Basically, it is a trade-off. There will always be a process to handle someone's assets at death. If you want to make it easier for your heirs, you should take control of your estate planning during your lifetime. Titling of assets is also an important part of your estate plan and not understanding the ramifications of certain types of ownership can have disastrous results for your heirs. So, meet with your estate planning attorney because everyone needs the advice of an attorney to make informed decisions in designing their estate plan.

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