What exactly does a will do?
“Avoid probate? I don’t have to worry about that; I have a will,” says the elder gent sitting across from me.
“A will doesn’t avoid probate,” I tell him.
A confused look comes over his face. “I still have to go through probate, even if I have a will?”
“Yep,” I say. “In fact a will does absolutely nothing to avoid probate.”
He ponders that a moment.
“Then what, exactly, is the point of having a will? What does a will do?”
There is a very common misconception that having a will is a way to get your family out of having to go through probate court when you’re gone. I don’t know how this idea got started, but my best guess is that people got confused between a living trust, which does avoid probate, and a will. But the misconception is a major problem because a lot of people are exposing their estates to significant cost and delay, because they mistakenly thought that their will did what it doesn’t do.
Let’s back up a bit. What is this “avoiding probate” business about anyway? Probate is the court case which has to be opened, after you are gone, if there are assets which need a title change.
For example, let’s say that you own a piece of recreational property, just in your own name. On your death, your family wants to sell the property. The problem is that the title is still in your name. So they have to go through the probate court to get the legal authority to transfer the property.
Probate is a highly imperfect system. It takes a lot of time; according to a survey by AARP a few years back, the average time to get through probate in the U.S. is one and a half years (and I’d say Alaska is similar). Under the best of circumstances it will cost a few thousand dollars, but if there are any problems or disputes, it can quickly go into the tens of thousands of dollars, or even hundreds of thousands.
If there are any heirs who are not getting as much as they think they should, it is fairly easy for them to drag things out in probate to try to force the others to settle. And all of this happens in a public file which anyone who wants to walk in the door of the courthouse can read.
There are various ways to avoid probate, such as a transfer on death deed on real estate, beneficiary designations on accounts, or a revocable living trust. A will, though, is not a way to avoid probate.
What is a will? It is your set of instructions to the probate court. It tells the judge who you want to have as your executor, and unless the judge has a very good reason to overrule that part of the will, that is who the judge has to appoint. It says who gets what, although that is subject to a lot of exceptions under the probate code. If there are minor children, it names a guardian. And it does a number of other things, such as waiving the requirement to post a surety bond (otherwise your executor will have to pay good money to an insurance company for a bond).
Please understand me on this: everybody should have a will. It is an absolutely critical part of anybody’s estate plan, even if they are taking steps to avoid probate. But don’t have a false sense of security that a will does what it doesn’t do.
Kenneth Kirk is an Anchorage estate planning attorney. Nothing in this article should be relied on as legal advice in a particular situation.