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5 Myths About Wills, Trusts, and Probate | Smith & Weer
5 Myths About Wills, Trusts, and Probate | Smith & Weer

To be fair, most people don’t know much about writing their wills, or establishing their wishes in regard to their estate. Dealing with such matters is generally left to experienced probate and estate lawyers such as the Scottsdale Estate Planning Attorney locals have been trusting for years with the individual filling in the necessary personal details. Still, it’s best to know a little something about how the law affects the final event in our lives. To that end, here are five things you might have thought were true but are actually myths.

  1. The State Gets Everything

There’s the assumption by many that when an individual passes on without having written a will, the state will come in and claim everything. The state does take over, but not to take your possessions. Instead, the court will determine who gets what, according to the laws of that state. This usually means that a spouse and/or children will get most of your possessions.

The only time that your assets will be claimed by the government is when you haven’t written a will and your blood relatives can’t be located. This may be a good enough reason to make sure you write a will, or meet with an estate planning lawyer who can handle the details for you.

  1. Only the Rich Need to Worry About Estate Planning

Even if you don’t have a sizable savings tucked away, there’s much more to consider that falls under the umbrella of estate planning. For instance, who will make financial and medical decisions for you in the event you become incapacitated? Who will care for your minor children? There are many additional contingencies that need to be considered and that’s why enlisting the help of a probate lawyer is so important.

  1. Estates Remain in Probate for Years

In nearly all cases, estates remain in probate just long enough for creditors to file claims against the decedent’s assets. This process takes anywhere from three months to one year, but rarely longer than that. Once debts and taxes are paid, the remainder of the estate is administered according to the details of the will. (It’s important to understand that with careful planning, the probate process can be entirely avoided. An estate planning attorney can help you with this.)

There are three factors that can force an estate into a longer term of probate:

  • Family conflict – Where members of the family contest the will.
  • A large estate – Larger and more complicated estates of the wealthy may be subject to state and federal estate taxes. This can extend probate by nine months with a possible six month extension added on.
  • Ongoing income – Where the estate continues to generate income, the probate process can be more complex.
  1. Trusts Eliminate Estate and Inheritance Taxes

This is not true as a blanket statement. While this is a myth, a skilled probate attorney may be able to help establish a trust that reduces, or, in some cases, eliminates the amount of estate and/or inheritance taxes applied. Several factors affect this possibility, so it’s best to get the facts straight from your estate planning or probate attorney.

  1. Spouses Don’t Have to Leave Anything to Each Other

In the case where children are considered, many couples opt to give everything to their kids or to their grandchildren. If all are in agreement, this can work out to serve everyone’s interests, but the surviving spouse does have the right to change his/her mind. If the spouse so chooses, he/she can take the “elective share” entitled by state law which is usually one-third of the estate. Commonly known as “taking against the will,” this stipulation can also allow the surviving spouse to receive up to one year of support or remain in the family home. The amount a spouse can claim also depends on how long the couple had been married. The longer their relationship, the greater the entitlement.

A special thanks to our authors at Arizona Estate Planning for their expertise in Probate and Estate Law.

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