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If you have a will, does that mean that your family can avoid probate when you die?
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A lot of people think it does.
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Unfortunately, that's not how a will works.
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We're going to get into that in deeper detail here.
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You're listening to a Retire Coast estate planning brief with Bill Anderson, founder of Retire Coast.
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These short episodes take important estate planning questions and break them down into practical information you can understand and use as you plan for yourself, your family, and the future.
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Now, back to Bill.
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The answer to the question I posed is a will does not avoid probate.
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Very important that you understand that.
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It does not avoid probate.
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In many cases, the will is actually the document presented to the probate court.
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The will tells a court how you want probate assets distributed and usually names the person you want to administer the state.
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You know, having a will makes the process clearer, but it does not automatically keep the estate out of court.
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A will directs probate.
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It doesn't eliminate probate.
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What probate actually means is it's a legal process.
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It's used to administer certain property after someone dies.
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The court recognizes the will if it's valid, if there is one.
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Well, the executor and personal representative receives the authority to act for the deceased person.
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Debts and legitimate claims are addressed and probate court, and remaining probate property is distributed.
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Without a will, state intestine law generally determines who receives probate property, or that's called dying intestate.
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I want to bring this up because I experienced this with a family member when someone passed away and the family member had a lot of debts, and the person was actually going to take those money remaining and go out and spend it.
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And I suggested that they might not want to do that.
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They need to first discharge those debts with those funds.
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That's one of the things that the probate court does.
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So another key question is do I have a will?
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And a better question is what happens to each of my assets when I die?
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We're going to use an example here of Jake.
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So Jake owns a house titled solely in his name.
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He has a checking account in his name only.
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He owns a truck solely in his name, and he has a retirement account that names his daughter as a beneficiary.
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Jake has a perfectly valid will, leaving everything to his daughter.
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Having said all of this, does the existence of that will automatically transfer the house, checking account, and truck to his daughter?
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And the answer is no.
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Now the retirement account will automatically pass to his beneficiary designation.
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I mentioned that in another podcast, rather than through the will.
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While the individually owned assets without another transfer mechanism may be probate assets.
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Now this brings up a point.
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Not all assets go through probate.
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There are assets that avoid probate, and they include retirement accounts with beneficiaries because you set that up with the company that holds your account.
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Life insurance, again, same situation with the beneficiaries.
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Certain jointly owned properties with survivor rights, and that might include your home if that's what you have set up in that state where you have the property.
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And then payable on death or transfer on death arrangements were available and properly established.
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The same situation there because that's already done, and state law covers all of these things.
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And then assets properly owned by a trust are also not subject to the probate.
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I want to make a distinction here.
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Your will generally controls property that becomes part of your probate estate.
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It doesn't override every other way property can legally transfer.
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And that would include what we just talked about, such as your 401k plan.
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So why bother having a will?
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Well, let's go through a few points.
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A will remains a fundamental estate planning document.
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It states who should receive probate property.
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Again, that's not your 401k because that's already taken care of.
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It can nominate the person who administers the state.
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It can address guardianship nominations if you have minor children.
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It can deal with property that wasn't otherwise planned for, and there's always something people leave out even from a trust.
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And it provides instructions rather than leaving distribution entirely to the judge and to the state law.
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One of our lessons here is isn't that you don't need a will.
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The lesson is that a will and avoiding probate are two different estate planning objectives.
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If you want to avoid probate, then look beyond the will.
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So I'm going to introduce a few concepts here.
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I'm not going to cover everything in this short episode.
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One is review how assets are titled.
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Other one is review beneficiary designations, understand joint ownership, consider whether revocable trust makes sense.
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Understand which assets should and shouldn't be placed in a trust.
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Consider state-specific transfer options.
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Coordinate everything rather than collecting disconnected documents.
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We're going to talk about all of these things in a future podcast.
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So if you're sitting somewhere and you're not driving to work and you want to do this little um exercise, take out a sheet of paper and write down your five largest assets.
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And next to each one, write down whose name is on it and whether it has a beneficiary.
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Don't worry about solving anything yet.
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Just determine how you own it.
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So, for example, you could take your house and say that your spouse is your beneficiary.
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Fine, you already took care of that.
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If some of those beneficiaries aren't listed next to your five largest assets, that's the type of work that you have to accomplish in order to complete your estate planning.
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And there's more, but that's a good start.
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You also may determine that your estate plan isn't really one document, it's a collection of ownership decisions, beneficiary decisions, uh, and legal documents that all have to work together.
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The main reason people want to avoid probate, other than the potentially a very large cost, hiring attorneys, going through a lengthy process, there may be assets that family members need and can't get to them because the probate just keeps dragging on.
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I can tell you that one case of a family member many years ago, one of my mother's relatives, was extremely wealthy.
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And the will that was written was very poorly drafted.
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There was no trust.
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And after 15 years of court battles, she received a total, I think, of around$300 out of what was uh originally, I believe, millions of dollars.
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Uh, by the time it got down to her and other family members, most of it was eaten up by lawyers' fees.
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Now, I don't want to scare you because that's not the case for most people, but you can plan ahead by first creating this will and then ensuring that other things that can avoid probate, such as your retirement accounts, are properly set up and you have beneficiaries designated for all of those accounts.
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If you are married, your spouse can be a joint owner with right of survivorship on the property itself, so that would definitely go to that person.
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And all of those things will avoid probate.
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The next step is to consider a trust, which we've covered before, and that is a big discussion by itself and what the trust does.
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So a will is important, but a will does not by itself avoid probate.
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And whether an asset goes through probate uh often depends on how, as I mentioned, that particular asset is owned and what transfer arrangements have been made.
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Now, uh this is the time when I throw this out.
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Our estate planning membership was set up so that you can not only understand by going through our free articles what these topics are, from a will to a trust to a HIPAA document.
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You can actually create them in our estate planning membership.
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You can do all the work yourself.
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Take your time, go through the process, make decisions, and go back and make changes if you want to, and then your work is eventually going to be done.
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It's a lot easier to do it in your own home than it is to try to drag it down to someone else's office and have them make decisions for you.
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But it's important to go through this process early on because if you don't create a will and you have no trust either, then the state will make all of the decisions for you.
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That means there'll be a judge sitting behind a desk that will say that Susie gets this and John gets this, and that's the way it is.
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And if you want to fight it, you can go to court and do that too.
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Uh but you don't want any of those things.
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So doing that planning in advance and making a decision.
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Uh, read our articles at retirecoast.com and decide whether you actually need to create a will, most people do, or you need to create a will and a trust, many people do, particularly when you get older and you have assets and you have a lot of people that you want things to be distributed to.
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Uh and it's important because for the will, you're going to designate someone to take care of those issues in the will.
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And then a trust that could be an entirely separate person.
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And our membership helps you make decisions that are made based on rational facts rather than emotions.
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Now I put links in our show notes for you to be able to read the articles that we've written, extensive articles on all of these different topics, so that you can understand a lot more.
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I know you're listening to this, and this maybe piques your attention, and you learn a little bit from it.
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Reading it gives you a little bit more, and we have some longer podcasts also that get into some of these things, particularly the decisions you have to make on who gets what uh and what is actually going to be given, uh, whether you want to give something to uh charity or not.
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Then there is that tricky situation where you do not want your nephew or niece to get a penny for whatever reason, maybe your son or daughter, for example.
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Simply leaving them out of the will actually makes it easier in some cases for those people you don't want to receive anything to ultimately sue and get something.
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So if you read our articles, we'll get into that.
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In fact, we'll talk about that in another podcast coming up, gives you a little bit more detail on how the will and the trust help to avoid those situations as well.
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So please go to retirecoast.com and take a look at our estate planning membership and read any of our just articles on estate planning.
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You'll see them uh just type in the search button, just type state, and then you'll see all the different articles that come up there as well.
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Well, thank you for coming and listening to our podcast.
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Why a will does not avoid probate.