On television, we often see a grieving family gathered in a conference room while the family lawyer dramatically reads the will. The beneficiaries learn what they have inherited, emotions erupt, and the transfer of property seems to begin immediately.
That familiar scene has created a great deal of confusion.
Families frequently call my office after the death of a loved one and ask to schedule a “reading of the will.” I explain that, despite what we see on television, a formal reading of the will is not a legal event and does not activate the will.
Having a will is important, but the will generally does not have authority simply because someone has died. The probate court must become involved. The will must be submitted to the appropriate court, and someone must be formally appointed to administer the estate. That person may be called the Personal Representative, Executor, or another title depending upon the jurisdiction.
This appointment begins the estate administration process.
Probate is a court-supervised process for administering property that passes through a decedent’s estate. Depending upon the size and complexity of the estate, the process can take months and, in some cases, years.
The process generally begins with filing a petition with the appropriate court. The court is provided information concerning the person who died, the will, the individuals entitled to notice, and the person seeking authority to administer the estate.
Once appointed, the Personal Representative has work to do. The representative must identify and secure estate assets, determine outstanding debts and expenses, address creditor claims, handle appropriate tax matters, maintain records, and ultimately distribute the remaining property to the appropriate beneficiaries.
This is much different from simply reading a document and handing out inheritances.
Another common misunderstanding is that the will determines what happens to every asset a person owns. It does not.
Some assets can pass outside of probate. Life insurance and retirement accounts, for example, may transfer directly to named beneficiaries. Jointly owned property may pass to a surviving owner depending upon how title is held. Assets properly transferred to a revocable living trust may also avoid probate administration.
This is why estate planning should involve more than drafting a will.
An effective estate plan considers how each asset is owned, whether there is a beneficiary designation, what happens at death, and whether the family will need court involvement to complete the transfer.
Probate Is Generally Public
Families are also sometimes surprised to learn that probate is generally a public court process. Documents filed with the court may become part of the public record, subject to the particular rules of the jurisdiction.
For families concerned about privacy, continuity of asset management, multigenerational planning, or property located in more than one state, understanding the difference between a will and a properly funded trust can be particularly important.
A trust, however, does not avoid probate simply because someone signed it. Assets intended to be governed by the trust generally must be properly titled or otherwise coordinated with the trust and the overall estate plan.
Planning Is About What Happens After the Documents Are Signed
The lesson is not that wills are ineffective. A will remains an essential estate-planning document for many families. The lesson is that signing a will is only one part of planning.
Families should understand which assets will require probate, which assets will transfer by beneficiary designation or ownership, which assets have been placed in trust, and who will have legal authority to act when incapacity or death occurs.
The goal should not be to create a collection of documents that sits in a drawer waiting for someone to “read the will.”
The goal is to create a plan that your family can actually implement.
Your legacy is not created by default, but by design and intentionality.
