What is a Will?

by Jerrold Bartholomew

The simple will is an important estate planning document to understand. One easy way to understand how a will works is to think of it as a set of instructions to a probate judge for distribution of a deceased person’s property. These instructions replace the default rules established by state law. Without a will, a deceased person’s estate will be distributed according to rules established by the state called the rules of intestacy. A probate court is a special division of the state court system that is given authority over incompetent persons and decedent’s estates.
The property to be distributed by a will is called the probate estate. A probate estate includes all property not jointly owned or having a designated beneficiary at the time of a decedent’s death. For example, real estate can be owned jointly by individuals who will assume the other’s interest at the passing of the other. But real estate owned by just one person will generally become part of that person’s probate estate. Ownership of such property may only be distributed to others with authority from the probate court.

You can think of the need to get authority from the probate court in the following manner. When a person dies, assets titled in that person’s name alone can no longer be accessed by anyone. Privacy laws prohibit financial institutions from disclosing or distributing assets to anyone but the owner. It is therefore necessary to get a judge’s permission and authority to access and control such accounts. This is done by opening an estate proceeding with the probate court and appointing a personal representative to carry out the decedent’s wishes as expressed in a will.

As you might imagine, the process of obtaining a probate judge’s authority can be expensive and time consuming. For this reason, people often speak of the need to avoid probate. It is not uncommon to see probate fees range from 4-8% of the gross value of an estate and to take a year or more to complete. For this reason, many people create an estate plan designed to avoid the cost of probate.

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