On a regular basis, clients or potential clients will tell me that “I have a Last Will and Testament, so I won’t have to Probate when I die.” Unfortunately, this couldn't be further from the truth.
A Last Will and Testament, or a Will for short, is a document that is created during life, that identifies that upon the Will maker’s passing he or she wants a named individual to act as Personal Representative, or Executor. The Personal Representative, or Executor, is appointed to gather in the deceased person’s assets, pay legitimate creditors and then to distribute the remaining assets to those individuals identified in the Will as the deceased person’s heirs. Before the named Personal Representative or Executor has any authority pursuant to a Will, the Will must be authenticated by the District Court for the county in which the Will maker lived when he or she died. Only then will the Personal Representative or Executor have the legal authority to gather and manage the deceased person’s assets. Or in other words, until a judge reviews a Will and finds that the Will is a valid Will, the person identified as the Personal Representative or Executor has no authority and cannot do what the Will identifies that the deceased person wanted done with his or her assets. The legal proceeding by which a judge reviews a Will to determine whether that Will is a valid (or invalid) Will and gives authority to the Personal Representative, or Executor, to do what the Will says should be done with the deceased person’s assets is called Probate.
There are several effective ways to avoid Probate, the most common of which is by having a properly drafted Living Trust.
If you have additional questions regarding Wills and Probate, or want to learn about how to avoid Probate through a Living Trust, contact Mountain View Law Group for a free Estate Planning Consultation with Addison D. Larreau.
Mountain View Law Group can be reached at (801) 393-5555 or at MountainViewLawGroup.com.