A will is a legal instrument which a person signs indicating how his or her estate is to be distributed upon death. It also designates the individual(s) who is to be put in charge of handling the estate.
A common misconception some people have is that having a will causes an estate to avoid probate. That is not true. A will is the document which is placed in probate upon a person’s death, and which is then used as the governing instrument for the probate process.
Another misconception some people have is that a will directs the disposition of all of a person’s assets on death. A will only affects those assets held individually by someone, and which do not have a designated beneficiary on death. Assets held jointly with rights of survivorship will pass automatically to a joint owner on death of the other joint owner. Policies of insurance and various accounts, including retirement accounts such as IRA’s or 401(k), often have a named beneficiary on death. As to such policies or accounts, the beneficiary designation will override the provisions of a will.
Because of a probable certainty of probate when a person has only a will, most of our clients choose to create an estate plan that is centered around a living trust.
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