Do Wills Help You Avoid Probate?
I receive a lot of questions from potential clients about wills and there’s a common misconception that if you have a will then you will avoid probate. That’s not necessarily true in most cases.
You wouldn’t do a will in order to avoid probate. What a will is, is a document that outlines your wishes and what will happen when you pass away. In that document, you have the ability to name―what’s called a personal representative of your estate―which is the executor of your estate or the manager of your estate. This is only a temporary position until everything has been distributed to the heirs, so it’s not a long-term commitment.
This representative will go by the terms of your will and make sure everything is distributed accordingly. So, a will gives you the ability to control where your assets go. A lot of people do this just to make sure that everything goes where they want it to because if you don’t have one of these, the court is going to have to look to the statute to determine how your assets are distributed. This is called intestate succession. There are intestate succession statutes in every state, including Nevada, that guide the court as to who will receive your stuff when you pass away. For example, if we have a married couple that has one child and the husband passes away and there’s no will, then what’s going to happen by Nevada statute is that 100% of the community property will go to the wife, 50% of the separate property will go to the wife and 50% of the separate property will go to the child, whether the child is a minor or not.
To expand on this, Nevada is a community property state, so the community property would automatically go to the wife. But the separate property of the husband is what would be distributed 50/50 to both the wife and the child. It goes down from there. So, if you aren’t married and you don’t have any children, then it would go to your parents. If your parents aren’t alive, then it goes to any siblings you have. If you have no siblings, then it goes down the line. And at the end, if you have absolutely no heirs that the Court can determine, then the court has to give your assets to the state of Nevada. It doesn’t happen very often, but it can happen. This is why people do wills because they want to make sure that their assets go to the people, they want them to go to.
In sum, with a will you have the ability to name the manager of your estate and decide who gets what. That’s the benefit of having a will versus just going by the statute because then you have absolutely no control.
Many people also have certain heirlooms that they want to go to certain people. If that’s the case, then that’s something that you can do within will as well. You can also include lists. Let’s say you have a Rolex and you want it to go to your daughter or your son then you can include that in the will and it’ll go to the right person. The reason to do this is because it helps your heirs, in other words, the people that you leave behind. Because if you don’t, then a lot of times, unfortunately when someone passes away, everybody gets very upset and there’s inner family fighting about who gets what. So at least if you have a will in place, they have a guideline and they have to abide by it. It prevents or at least controls some of the fighting. And that’s another reason if you do have heirlooms to go ahead and designate who they go to rather than leaving it up to everybody to decide because there may be some fighting involved.
So that is why you would want to will―it’s the most basic estate plan that you can have and most attorneys, including my firm, provide it as part of a package. If you get a will, then you’re also going to have two other documents in this package. One is called a power of attorney over health care and one is called a power of attorney over financial decisions. I will discuss these two other documents in another blog.
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