There are many misconceptions about what a ‘Will’ does and whether your need one or not. The short answers is that everyone needs one if they care about where their estate will go after they pass. The Will is the governing document of your probate estate, after you have passed away. So what is your probate estate?
Your probate estate consists of any asset you held solely in your own name when you pass away. For example, if you own your home with your spouse when you pass away, your spouse will then own the home individually, and the home is not a probate asset. However, if you had a checking account with just your name, and not your spouse’s name, this account would be a probate asset. The probate process is when the probate court names a person to be a fiduciary for the estate. A fiduciary is someone who is required to act for the benefit of the estate. The fiduciary is called the personal representative, formerly known as the executor. The personal representative has the responsibilities of filing the appropriate paper work with the court, collecting the assets in the probate estate, paying of debts and expenses, and they distributing the assets to the beneficiaries. All of this can be done with or without a Will, and the probate court supervises this entire process.
As I mentioned above, the Will is the document that governs this process. If you do not have a Will, the intestacy statutes will apply. For more information on the intestacy statutes, please see Understanding the Intestacy Statute, posted on August 9, 2016. The Will therefore is used to appoint a personal representative and direct to whom the assets are to pass. The Will is also the only legal document where you can name a guardian for minor children.
To debunk the common misnomer, having a Will does not avoid the probate process. It is filed with the probate court and is part of the probate process.
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