Although only about 40 percent of Americans have a last will and testament, it generally is recognized that wills are a necessary and important part of being financially responsible.
Exactly what a will does and does not do, however, seems to be more elusive. There are three major misconceptions regarding wills.
First, there is some confusion as to exactly how a will passes property. Many people believe without a will, your property must pass through a court’s probate proceeding, but with a will, a named executor simply can distribute the property outright.
The truth is “probate estates” pass to beneficiaries through a court proceeding, whether the individual had a will or not. The importance of having a will is not in the ability to bypass probate, but that your specific wishes are followed.
Without a will, you give up the right to choose beneficiaries and methods of distribution and allow state law to determine who will have your property. On the other hand, a will simply is your instruction manual to the judge. Your will trumps the state law default of how to handle your estate. The judge simply reads your formal intentions for your property and can distribute accordingly.
Second, and probably the most common, is a will distributes all of your property. This is such a confusing concept that we often spend considerable time sorting out different types of property and how each will be distributed.
Generally speaking, with some exceptions, jointly owned property remains the property of the surviving co-owner and property with designated beneficiaries directly passes to those beneficiaries. The only property which usually passes through a will is property owned solely by the decedent. Similarly, property owned by a trust does not pass through a will.
Although it may seem as if there is no real harm in including unnecessary property within a will, the reality is it inadvertently can lead to beneficiaries receiving significantly different amounts than intended. For example, if someone has multiple accounts and names one or two children as co-owners or designated beneficiaries – usually an attempt to get by without a power of attorney – but lists all three of their children as equal beneficiaries within the will, those three children will not be receiving equal shares.
In this very common scenario, the only equal split will be property which is left and actually does flow through the will.
In order to avoid this outcome, make a chart with three columns. In the first column, write the exact property (i.e. bank account, farm, etc.). In the second column, write whether it is solely or jointly owned. In the third column, write whether you have any designated beneficiaries on the account.
First column property that does not have a second or third column name other than your own, will pass through your will.
Third, many people believe a will gives lifetime protection of property by naming beneficiaries. Unfortunately, this belief can cause real heartache later when they find out it does not offer asset protection. A will is a tool that only serves to distribute property after death. It has no real effect during life. In order to ensure beneficiaries receive your property, you need to take action outside of the will.
A last will and testament is an important planning document and can be a truly powerful tool in wealth transfer. However, be clear on the limitations of using wills. A will merely is a document which should reflect a larger plan for your estate.