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Myth 16: “I have a will, which is all I need.”

Reality: You may be right, as long as you understand and are willing[1] to accept the limitations of a Will-based plan.

A Will is perhaps the most common estate planning option. It can be fairly simple for your attorney to create a valid will, and this can often be done for a relatively small fee. Part of the reason for this simplicity is that a Will is simply a letter of requests to the probate judge to the effect of, “Judge, if you’re reading this, I’m dead. I would ask that you please do the following with my stuff …”

As a general rule, every Will must be probated. Of course, there are always exceptions, and we note one of the exceptions in the footnotes below.[2] Further, the probate process in Utah can be fairly quick and not overly expensive—if all goes well. However, even in the best of cases, you should be aware of a few realities with probate.[3]

First, prior to taking your case, a probate attorney will likely require a “retainer,” basically, a down payment that will convince the attorney to stop playing video games and get to work on your case. Generally, the attorney will start billing your estate on an hourly basis. Attorneys working on an hourly basis can become very expensive very quickly (not always, but often). The probate process can become a costly affair, especially considering that your attorney may not be the only one collecting fees; sometimes, accountants and other professionals can get involved and will bill fees at the same time.

Second, whatever the style or flavor,[4] your probate will become a matter of public record. This fact is sometimes the sole reason why people choose to avoid probate. I myself don’t like the idea that following my death, someone could go down to the courthouse and get a copy of my Will. You can even find the Wills of many of your favorite celebrities online.[5] This also brings up another idea that I hear quite often, namely, when discussing probate or other events that might transpire after someone’s passing, it is not uncommon for such person (usually a man ☺) to say something like, “I’ll be dead, so why would I care?”

Well, at first glance, that might seem like a valid point, and I can relate to this thinking.  On the other hand, even if you won’t care, it’s highly likely your loved ones will (pun intended) care. Your family likely won’t enjoy the fact that your Will is a matter of public record, including the fact that someone off the street (such as their high school rival or ex-boyfriend or ex-spouse) can find out exactly what assets you had at your passing and what you ended up giving to your beneficiaries. The public nature of probate is enough to dissuade many people from choosing this type of planning.

Third, although your Will could go through the probate process in four to nine months[6] (that’s assuming everything goes well), your probate could also languish in the court system for years. You don’t know, and neither do I. Nobody knows beforehand what his or her probate process will look like and how it will play out. Because probate is a public court proceeding (you’ve perhaps seen those notices in the newspaper), there’s always the chance that someone who has had it in for you all these many years decides to cause trouble after you’re gone. Admittedly, this is describing a worst-case scenario, and again, the reality is that a great many if not most probates in Utah go smoothly, without fanfare and with little or no drama. The fact remains, however, that there’s always the risk your probate will be one of those that become problematic. You don’t know (as you read this today) what your family members, your in-laws, your business partners, or anybody else will do in that situation.

Let’s assume there’s a one in twenty chance your probate would become a long, expensive, messy proceeding.[7] If I can give you a 100 percent guarantee that you won’t have to worry about probate, that you and your family could avoid it altogether, would you be interested? Your answer probably depends in part on what that would cost, right? What if I told you that probate avoidance through a trust-based estate plan would, in fact, cost more upfront (when we’re establishing your comprehensive estate plan) but that considering the big picture, you may, in fact, save money when all is said and done? It’s likely less expensive to get a simple Will right now and have that as the basis of your estate plan. But with that approach, you must understand that is just the “introductory” price. Your estate and/or your family will pay more, perhaps much more, later, when the time comes to probate your will.

Again, in Utah (as in many other states), Wills get probated with no problems every day. By no means am I suggesting probate is always or even often a huge problem. Even so, there’s always the risk that your probate could turn into a problem, and I like to protect myself and my clients against risks by preventing them if I can. Thankfully, I know I can avoid probate altogether and thus bypass all the potential risks associated with it.

Some attorneys espouse the virtues of probate; they’ll tell you it’s “no big deal.” Not always, but some of the time, those same attorneys make $20,000 to $30,000 on a fairly basic probate matter. They’re hoping you will become their next probate case …☺ Again, this is not always the case, but sometimes, unfortunately, it is.

[1] Pun intended.

[2] “What if my estate is very small? In Utah, if a person dies owning less than $100,000, and if none of the property the person owns is real estate, no probate of the person’s estate will be needed. The deceased person’s property can be distributed to the people who are entitled to it by presenting a simple affidavit to banks and brokerage firms who hold the property. This is true if the person dies with or without an estate plan.

If a person’s estate qualifies for this affidavit procedure, she does not need a revocable trust in order to avoid probate. However, if there is a good possibility that her estate will grow over the years, it may be advisable to use a revocable trust anyway. Or if the person is elderly, a revocable trust might be advisable in order to avoid a court-supervised conservatorship in the event the person becomes incapacitated.” (from www.utahestateplanning.org).

The reality is that very few of the people we deal with meet these criteria because most people have more than $100,000 in total estate assets and, even more commonly, most people own real estate even if subject to a mortgage.

[3] “Probate is a court-supervised process by which a deceased person’s creditors are paid and the decedent’s property is distributed to the persons who are entitled to it. Historically, probate was a lengthy, inconvenient, and expensive process. The probate process would generally take at least a year from start to finish, and it was not uncommon for it to last several years. Frequent court hearings would be required as court approval was needed before any significant action could be taken, and the many court filings resulted in significant attorney, accountant, and other professional fees. Such a cumbersome probate process still exists in some states.

Utah has very streamlined probate procedures. If no dispute arises, it is possible for the estate to be probated without they’re ever being a hearing before a judge. All matters can be resolved through filings with the court clerk. Nonetheless, if a question or dispute arises that requires a judge’s ruling, it is still possible to get the matter resolved by a judge.

Note that a probated will is a matter of public record. If one does not want the terms of one’s will to be made public, one should consider using a revocable trust rather than a traditional will.” (from www.utahestateplanning.org; emphasis added).

[4] That is, formal or informal probate, short or long, clean or with many different incidents and complications.

[5] For example, google “Last Will and Testament of Jacqueline Kennedy Onassis.” Even though she was a very private person, she received very poor estate planning advice, and her affairs become totally public after her passing.

[6] This can be a “fast” probate in Utah. This time frame could be much longer in other states.

[7] One in twenty is just a ballpark estimate, but taking a risk on those seemingly good odds just isn’t worth it, particularly when there are solid ways to keep your estate from being subject to the probate process in the first place and ending up with a result you didn’t want.”