In a word, no. But, this does seem to be a common misconception. A will is a document that states your wishes upon your death. If it has been properly executed, it will control what happens to your estate upon death, superseding any state statutes.
The most important things that wills accomplish are establishing the following:
–Who will serve as your executor, also known as your personal representative;
–Who you want to inherit your estate, known as your beneficiaries or heirs;
–How your estate will be split up among these beneficiaries.
What a will does not do is actually transfer the legal ownership of your assets upon your death. Additionally, wills are designed to be somewhat lasting and therefore, in general, they do not provide the specific details of your assets.
For example, a will often states the percentage each beneficiary is entitled to. It generally does not list out all of your specific financial accounts or personal property.
What a will does allow for is the right for you to create a tangible personal property list with designated beneficiaries on your own and to modify it on your own without having to redo your entire will. This is an important benefit of a will, as without a will, specifically stating that you can make a personal property list, any such personal property list is not legally enforceable. It’s not to say that your heirs would not honor such a list, but they would not be legally obligated to without a will.
Now, the question becomes, how does your executor legally transfer assets to your heirs. If what needs to be transferred or sold is real property that is still legally in your name, your executor will need to open a probate. Only after a court grants your executor the power to act, by issuing what are called letters testamentary, can the property be sold or transferred out of your name.
Even if you identified in your will the real estate and who you wanted to receive it, your executor would still need to open a probate. Identifying what you want to happen to your real estate in your will does not transfer legal ownership.
Another instance when a probate would need to be opened is if your assets exceed $75,000. For example, if you had a 401K with $76,000 in it and you had not named a beneficiary on this account, your executor would need to open a probate before these funds could be distributed to your beneficiaries. This fact would not change even if this 401K was specifically named in your will and you identified in the will who you wanted to receive the funds. Just providing a copy of the will to the financial institution will be insufficient for it to release the funds. A copy of your executor’s letters testamentary will be required.
There are, in fact, several ways to have a will and avoid probate, which are not being discussed in this post. A competent estate-planning attorney at Miller & Stevens or elsewhere, can explain these options.
But, in my opinion, trying to avoid probate at all costs is not always the best estate plan. Having your estate probated is not necessarily a bad thing. Probates can be quite simple and straight forward. They create transparency and oversight by a court. They also significantly limit the amount of time that creditors have to step forward and make claims against your estate. Finally, probates can also protect your executor. Once he or she has a court order approving his or her actions, it becomes very difficult for a creditor or a beneficiary to challenge these actions. Their window to do so, will close after a brief statute of limitations period. We all hope that our family and loved ones will come together after our death and trust each other. Unfortunately, that is not always the case. In such instances, the oversight and guidance of a court through a probate, can be very helpful and help minimize conflict.
For more information on probates, wills or other estate-planning tools, reach out to Miller & Stevens Law at 651-462-0206.
Written by Attorney Amy Mason
