3 Common Probate Myths

When it comes to estate planning, you need to start out with accurate information. Unfortunately, there is a lot of misinformation surrounding probate which many people believe when they first seek out an estate planning lawyer. Each case has its own unique circumstances, but there are a few common myths many people hold to be true about the probate process. Here are just a few misapprehensions about what estate planning entails:

A revocable living trust will help avoid probate.

This myth is actually partially true. When a revocable living trust is created, it becomes a legal entity that can own property. If the trust is used for your own individual property, it can avoid probate because the trust will still exist after your death.

However, putting a living trust in place is only the first step. You must also make sure that you successfully transfer all of your property to the living trust in order to avoid probate. Any property left out of the trust will have to go through the probate process.

The last will and testament will be read aloud.

Movies and TV shows often feature the dramatic reading of a will to a collection of gathered relatives. However, this familiar image from pop culture has little basis in reality. If you write a last will and testament, your estate planning attorney or executor will not assemble your loved ones in a room to read them the document. These readings of the will could have been more prevalent when mail was unreliable and fewer people were literate, but they never happen today. Now, after a death, the beneficiaries each get a copy of the will. Even if they somehow do not receive one in the mail, wills become public documents once someone submits them to a probate court, so whoever wishes to can inspect them.

Creating a will should prevent my estate from going through probate.

Probate is, basically, all the laws that apply to property that is left behind after someone dies, which is collectively referred to as the estate. That means once you’re gone, your estate must be be transferred to new owners, otherwise it will be handled according to state probate laws. If you write a last will and testament with the help of a probate lawyer, you can decide who the estate should go to and how assets will be divided among loved ones.

Sadly, the idea that a will allows your estate to avoid probate is false, since all wills must comply with state law. After a death, a probate court must determine if the document you created as your will is in compliance with those laws. In New York, as with all other states, someone must submit your will to a probate court in order to begin the probate process. Putting your wishes down on paper is only the beginning; every will has to be probated.

With so many myths surrounding estate planning law, it’s easy to fall prey to misinformation. For guidance throughout this important process, contact the law offices of Richard Cary Spivack, and let an experienced Queens probate lawyer help you make the right decisions.