Critter Corner: Is a Last Will and Testament Enough?

Dear Angel,

My sister wants to save money on estate planning. She is considering Do it Yourself (DIY) forms that she saw online, or if she does go to an attorney, she said that a Will should be enough. Is that true?

Thanks for your help!

Will Snaughtenuff

Dear Will,

It is commendable that your sister wants to get her estate planning in order. However, DIY is a bad idea. Please see Mr. Farr’s article to understand why. Also, a Will, for most people, is not enough, especially if your sister wants her loved ones to avoid the nightmare of probate.
When many first consider Estate Planning, they immediately think of preparing a Last Will and Testament. While having a Will is slightly better than dying without a Will (i.e. dying intestate), Wills also have some major drawbacks – the biggest drawback being that a Will forces your estate to go through probate. That’s not something most people want for their loved ones.

What Makes Probate So Bad?

Probate is the court-supervised proceeding used to change title to assets from the name of an individual who has passed away into the name of the living beneficiaries. The probate process includes proving the authenticity of a person’s Will, appointing an executor, identifying and inventorying a person’s assets, paying debts and taxes, identifying and notifying “heirs at law,” whether they are mentioned in the will or not, filing incredibly complex annual accountings, and distributing property according to the Will, or if no Will is available, according to state law. See below for detailed reasons why probate is such a nightmare:

  • Probate requires frustrating intrusion by the court, lawyers, and the public into a very emotional, private, family time. A judge may have to determine who is a legitimate creditor and may have to rule on distributions to children and other beneficiaries. Your estate may have to hire a lawyer to shepherd the executor through the legal maze.
  • All of your affairs will become public knowledge. The contents of your Will would be on file in the courthouse, for all to read. And Wills are read. They are read by salesmen, con artists, newspaper reporters, and by those who are curious, all seeking in one way or another to take advantage of the publicity required by the probate process.
  • Probate takes time. Unless your executor is absolutely certain that there are no debts owed by the estate (a rare occurrence, since almost everyone leaves some small debts behind) and is willing to accept personal responsibility for your debts, Virginia probate law mandates that your assets not be distributed for one year after you die, to allow creditors time to petition the court for full payment. Any assets distributed before that time come with a heavy cost for your executor — he or she is personally liable for the repayment of all of this amount, even if the beneficiaries to whom distribution is made have already spent the amount distributed. Thus, your executor will likely be very hesitant to distribute before the 1-Year mark, even if you executor is fairly sure that all debts and taxes have been paid. The court (through the Commissioner of Accounts in each County and City), not your family, will supervise and authorize the settling of all debts and the payment of inheritances, in its time and with its delays.
  • On a national average the probate process takes from 5% to 8% of your family estate out of the hands of your beneficiaries and gives it to the courts and other outside individuals. Planning with a trust can save the average American family about $30,000 in probate fees, attorney fees, and court costs alone, according to a national study by the AARP. The upfront cost of a trust is only slightly higher than just a Will, but the savings in the end always makes the initial expense well worthwhile.

A proper estate plan using a trust and kept up to date helps minimize delays and costs and can provide for the prompt appointment of trustees, payment of expenses and taxes, and settlement of claims.

The best way to avoid probate is to consult an experienced elder law attorney, such as one of the attorneys at the Farr Law Firm, to design and implement a fully funded Revocable Living Trust or a Living Trust Plus®, depending on your situation. Your sister can call the Farr Law Firm at 703-691-1888 at any time to set up an appointment for a no-cost initial consultation.

Hope this is helpful,

Purrs,
Angel

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