What you don't know about a Will

I often receive calls where an individual says to me, "Nick, I want a Will" or "I just need a Will".  I in turn tell the caller that while everyone should have one, a Will - will not keep a loved one out of court.

Everyone needs an Estate Plan. And most people need an attorney's help to determine what the plan is and what 'estate planning tools' need to be utilized.  In Michigan, most people don't realize that a Will must be "probated".  Meaning the Will must be filed with the Probate Court.

Here's an example: let's assume your Will says that your son gets your house and your daughter gets your bank account.  Let's also assume your Will is properly drafted and your instructions will be followed by the Probate Court. When son tries to transfer title to the house to his name or sell the house, the title company will explain to him that he cannot transfer title without a court order. Same for daughter. When daughter takes the Will to the bank to show the bank that she gets the money in the account, the bank will explain that they cannot give her the money without a court order.

So if one of the goals of estate planning is to keep loved ones out of Court, why then would I recommend someone only draft a document that must be filed with the Court?  This rhetorical question often gets the caller's attention.

When a Will is filed with the Probate Court, court fees must be paid, a personal representative must be appointed by the Court, "interested parties" must be put on notice, assets must be inventoried, and this is all done in public forum (the Court) that typically lasts at least six months.

There are various ways to get your assets and money to your loved ones without going to Probate Court: Beneficiary Designation, Joint Ownership, Trust or gifting property or money during your lifetime.

What types of assets you have and where you want these assets to go after you pass away will help determine what estate planning tools need to be utilized.  That's why it is so critical to consult with an estate planning attorney.