The End Result of Preparing a Will

Remember, the end result of having a will should be considered by anyone who is drafting a will. Your will quite simply states in effect, "Please transfer my assets to the following people." The key to understanding wills and probate is understanding that you are not there to sign the title of each of your assets over to another person because you are no longer living. After your death, your bank account or the title to your house still says you are the owner (or part owner).

It is critical to understand that just saying in a will that you give your house to your only child does not mean your only child can simply apply to the county recorder's office and execute a transfer of title to the house. Any transfer of title, to be recognized as legal, would have to be signed by you, and you are no longer around. Thus, when you draft a will it must be presented to a court, and the court can then, after it makes a determination that your only child is the proper recipient, order the title be changed into your only child's name. This court order is what makes the transfer legal in the absence of your presence.

The end result in most states is that you must file a proceeding known as a probate and open a court file. Most of the time the first step is for the person(s) you designate as an executor(s) to file a Petition of some type with the Court in their area, or the area in which the person making the will died, pay certain court costs, and begin to ask the court to recognize several things: (1) that this court has jurisdiction over this Probate matter; (2) that the copy of the will which you, as executor, have is the last will of the person who died and is a valid document which expresses their interests and intentions; (3) that you are the appropriate party to be acting as executor; and (4) that you are in the process of compiling a list of the person's possessions and debits, so that, if you are appointed by the court to be the executor you can then "marshall" [collect and organize] these assets and pay certain debts of the estate.

In most states, with certain exceptions for low estate values or other states which may have summary probate process, your executor and your will will be in court. This is the only manner, with certain limited exceptions, that allows the transfer of title of your property to others, which is what you are really saying in your will. Of course, the net effect of this is lost on many people, who forget that by making a will, they are in effect, guaranteeing that many of their estate assets will be used up in the court process known as Probate, for expenses for lawyers and costs.

This is why we can safely predict that if you draft a will, your heirs will be in court when you die, with certain limited exceptions. This is also why many people seriously consider other estate planning vehicles, such as trusts, joint tenancies, and other legal vehicles, which can facilitate the transfer of your assets to others, without a court being involved, and without a heavy legal bill, and a year or two, or more, of wasted time dealing with the court.

Posted in: Estate Planning