Beware of Wills
There are other options for avoiding probate!
There are some things that are obvious about Wills; one is that they will pass through probate. Often what is not written, may be a factor of law. Below are some examples.
1. The birth of a new child after a Will is created serves to revoke that Will in some sates. In other states the child born after the creation of the Will receives a share equal to what the child would have received if the parent died without a will. In other words, the child is not omitted from the Will, unless there is an intentional effort to omit that child. This means that after the birth of a child, the will should be revised. The exception might be if the Testator (the deceased) provided in other ways for the child.
2. Some states allow a “no-contest” rule in a Will that automatically will exclude anyone who challenges the Will in court. This can be of aide to the Executor to thwart off attacks from angry contesters.
3. If the witness to a Will is also a beneficiary and the Will cannot be proven in court (the witness is incapacitated or similar) the Will can be void without the proof that the beneficiary is also a witness.
4. A new marriage usually revokes a person’s Will unless there is a written amendment that the Will shall not be revoked in the event of another marriage. It is important for a Will not to conflict with any other estate plans or agreements such as divorce agreements.
5. When a person dies, usually the Executor of a Will files it in probate court. This can be completed with or without an attorney.
6. Right of Survivorship varies in a state-by-state circumstance. Generally, if a spouse dies the other spouse has joint right of survivorship over such things as bank accounts or the house, however, when assets are not titled properly and where there is a will, second properties in a single person’s name may be subject to estate tax or probate court.
7. What is in a safe deposit box and who gets it, depends on who has custody. If a spouse is the only person with the keys, then the contents can be removed by that person. If the bank finds out that a person is deceased, they will likely freeze the contents in the box.
8. Banks check death records and by policy, when they find out a person is deceased and that person is not on a joint account, they will freeze the assets that they have custody over.
Trusts often avoid these problems and create a much easier passing of an estate. A trust is an agreement with a Trust Deed that has the written directives for the assets. The assets must be titled to the trust, or they too may find themselves in probate court.
