common misconceptions about estate planning and probate
1. I'm married, so I don't need a will because everything will go to my spouse automatically upon my death.
By law, your spouse is the heir to your community property, but will likely have to go through probate to actually transfer assets into your spouse's name without the right planning. However, if you have separate property, a portion of that property may be required to go to your children from a prior marriage, parents, or siblings instead of your spouse. With proper estate planning, it is likely you can avoid probate on the first of your deaths and possibly on the second as well. There are good reasons to avoid one or both, but there are also reason why probate isn't all bad. Also, having a will or other estate planning tools allows you to leave gifts to children, friends, charities, while giving the rest to your spouse.
2. I have a will, so my estate won't go through probate.
Probate is the process by which the terms of your will are put into effect through the approval and guidance of the court. There are many laws that deal with the process that need to be followed to ensure that creditors get paid and the wishes of the decedent are met. There are cases where no probate is required, but very often it's necessary by law. There are a variety of factors involved in determining whether probate is beneficial or not at the planning stage and other factors determining whether probate is required or not after a person dies. There are also different versions of an estate administration, so the choice isn't really between probate or no probate, it is quite a bit more nuanced.
3. I'm single, so I don't need to do any estate planning because I don't have anyone to protect or provide for.
If you're single, it's especially important to have up-to-date powers of attorney to ensure someone can make decisions for you if you are incapacitated. Since you don't have a spouse, you may want your significant other, best friend, sister-in-law, or someone else to make financial and health care choices for you, but in order for them to do so, they need to be given the power correctly through properly drafted and executed estate planning documents. It's also important to have a will directing your assets to the right place upon your death.
4. I can just print out a will, power of attorney, or other documents I find online and they will be good enough.
The documents themselves MAY be sufficient, but without knowing exactly which documents you need and how to interpret the endless options and variations among them, you are likely setting yourself and your loved ones for failure and much higher legal bills in the end. If documents aren't correct or if they create unintended or conflicting results, then your care and estate may be managed by the court through a guardianship or litigation. Also, not all assets are governed by a will, so trying distribute everything through use of a will may result in unintended distributions. The value of an estate planning attorney or probate attorney is not just the actual documents, but the thoughtful interview, guidance, and issue spotting we are trained to do to make sure you get what you and your family need.
5. I will just give everything to my oldest son before I die and he'll "do the right thing" and give a fair share to his siblings.
While your son may be benevolent, siblings rarely see eye-to-eye on what's "fair," especially when it comes to money and tenfold when it comes to money after parents have passed away. Additionally, there are tax benefits to inheriting property instead of receiving it as a gift. Another issue could be that the "inheritance" your oldest son is transferring to his siblings would now be considered a gift from him to them and he may incur tax liability because of it. Then again, depending on the size of your estate and types of assets you hold, you may want to start gifting as soon as possible with specific assets to avoid estate tax.
6. I'm too young, I don't have anything but student loans to leave anyone, so I don't need estate planning.
You may not have a positive net worth yet, but you are worth a lot to your family. Estate planning doesn't only deal with assets, it deals with making health care choices , end-of-life wishes if you're in an accident or experience unforeseen health emergencies, and where your children will go if you die. You can also direct whether you want to be cremated or interred, where your final resting place will be and who gets to make those decisions if you don't already know what you want. Putting these things in writing prevents your family from having to search their souls about what you would have wanted or the court having to step in to do it for you.
7. I have power of attorney for my mom, so I can do whatever I want with her assets.
A power of attorney gives an agent the ability to manage assets in the best interest of the principal, but not to go against his or her wishes. An agent is still liable to the estate of that principal for having managed the assets wisely, appropriately, and to account for what was spent when the principal passes away. Don't get yourself in trouble by mixing assets or spending them on your own expenses. Learn about your fiduciary responsibilities and protect yourself from being sued by siblings or other beneficiaries. Hire an attorney to advise you, if necessary.
8. I have a Will, so all my assets will be divided according to what I say in the Will.
A will typically only controls some of your assets ("probate" assets). Other assets are controlled by beneficiary designations, contracts, or deeds ("non-probate" assets). An experienced estate planning attorney can evaluate your assets and provide you with information specific to your situation and assets, as well as guide you toward the most efficient plan to ensure your wishes are put into place upon your death. On the other end a probate attorney will help guide you in managing an estate after someone has passed away to ensure assets go according to law.
Let us help you with your Spokane estate planning questions and projects in person or virtually (by phone, email, video chat) anywhere in Washington state including Seattle, Tacoma, Bellingham and elsewhere. Contact Megan Lewis Law, PLLC to get started with your planning today. We discuss your family, assets, and goals to structure the most appropriate and efficient estate plan to meet your wishes. If a loved one has passed away, we can help with Spokane probate as well.
By law, your spouse is the heir to your community property, but will likely have to go through probate to actually transfer assets into your spouse's name without the right planning. However, if you have separate property, a portion of that property may be required to go to your children from a prior marriage, parents, or siblings instead of your spouse. With proper estate planning, it is likely you can avoid probate on the first of your deaths and possibly on the second as well. There are good reasons to avoid one or both, but there are also reason why probate isn't all bad. Also, having a will or other estate planning tools allows you to leave gifts to children, friends, charities, while giving the rest to your spouse.
2. I have a will, so my estate won't go through probate.
Probate is the process by which the terms of your will are put into effect through the approval and guidance of the court. There are many laws that deal with the process that need to be followed to ensure that creditors get paid and the wishes of the decedent are met. There are cases where no probate is required, but very often it's necessary by law. There are a variety of factors involved in determining whether probate is beneficial or not at the planning stage and other factors determining whether probate is required or not after a person dies. There are also different versions of an estate administration, so the choice isn't really between probate or no probate, it is quite a bit more nuanced.
3. I'm single, so I don't need to do any estate planning because I don't have anyone to protect or provide for.
If you're single, it's especially important to have up-to-date powers of attorney to ensure someone can make decisions for you if you are incapacitated. Since you don't have a spouse, you may want your significant other, best friend, sister-in-law, or someone else to make financial and health care choices for you, but in order for them to do so, they need to be given the power correctly through properly drafted and executed estate planning documents. It's also important to have a will directing your assets to the right place upon your death.
4. I can just print out a will, power of attorney, or other documents I find online and they will be good enough.
The documents themselves MAY be sufficient, but without knowing exactly which documents you need and how to interpret the endless options and variations among them, you are likely setting yourself and your loved ones for failure and much higher legal bills in the end. If documents aren't correct or if they create unintended or conflicting results, then your care and estate may be managed by the court through a guardianship or litigation. Also, not all assets are governed by a will, so trying distribute everything through use of a will may result in unintended distributions. The value of an estate planning attorney or probate attorney is not just the actual documents, but the thoughtful interview, guidance, and issue spotting we are trained to do to make sure you get what you and your family need.
5. I will just give everything to my oldest son before I die and he'll "do the right thing" and give a fair share to his siblings.
While your son may be benevolent, siblings rarely see eye-to-eye on what's "fair," especially when it comes to money and tenfold when it comes to money after parents have passed away. Additionally, there are tax benefits to inheriting property instead of receiving it as a gift. Another issue could be that the "inheritance" your oldest son is transferring to his siblings would now be considered a gift from him to them and he may incur tax liability because of it. Then again, depending on the size of your estate and types of assets you hold, you may want to start gifting as soon as possible with specific assets to avoid estate tax.
6. I'm too young, I don't have anything but student loans to leave anyone, so I don't need estate planning.
You may not have a positive net worth yet, but you are worth a lot to your family. Estate planning doesn't only deal with assets, it deals with making health care choices , end-of-life wishes if you're in an accident or experience unforeseen health emergencies, and where your children will go if you die. You can also direct whether you want to be cremated or interred, where your final resting place will be and who gets to make those decisions if you don't already know what you want. Putting these things in writing prevents your family from having to search their souls about what you would have wanted or the court having to step in to do it for you.
7. I have power of attorney for my mom, so I can do whatever I want with her assets.
A power of attorney gives an agent the ability to manage assets in the best interest of the principal, but not to go against his or her wishes. An agent is still liable to the estate of that principal for having managed the assets wisely, appropriately, and to account for what was spent when the principal passes away. Don't get yourself in trouble by mixing assets or spending them on your own expenses. Learn about your fiduciary responsibilities and protect yourself from being sued by siblings or other beneficiaries. Hire an attorney to advise you, if necessary.
8. I have a Will, so all my assets will be divided according to what I say in the Will.
A will typically only controls some of your assets ("probate" assets). Other assets are controlled by beneficiary designations, contracts, or deeds ("non-probate" assets). An experienced estate planning attorney can evaluate your assets and provide you with information specific to your situation and assets, as well as guide you toward the most efficient plan to ensure your wishes are put into place upon your death. On the other end a probate attorney will help guide you in managing an estate after someone has passed away to ensure assets go according to law.
Let us help you with your Spokane estate planning questions and projects in person or virtually (by phone, email, video chat) anywhere in Washington state including Seattle, Tacoma, Bellingham and elsewhere. Contact Megan Lewis Law, PLLC to get started with your planning today. We discuss your family, assets, and goals to structure the most appropriate and efficient estate plan to meet your wishes. If a loved one has passed away, we can help with Spokane probate as well.
