Debunking Last Will and Testament Myths
By: Barry E. Haimo, Esq.
August 24, 2022
The more clients I encounter, the more important I feel that last will and testament myths are cleared up. Hopefully being more informed will facilitate more personalized and appropriate decision making.
Here are five myths about Wills.
Myth #1: Your state inherits your property if you don’t have a will.
If you don’t have a will, and even if you do have a will, but its not validly executed, all of the property in your estate will pass in a manner set forth by your state laws. It’s usually labeled “intestate succession”.
The fact is that the state only inherits property when there’s nobody else related to you that is alive and can be found. Most importantly, generally great measures are taken to ensure that living family is found before going to the state.
Myth #2: A Will avoids probate.
Unfortunately, a will does not avoid probate. All property that is titled in your name goes through probate. It doesn’t matter what type of property it is. Unless it’s owned by another entity, such as a trust, jointly owned with another person, or passes outside of probate by operation of law, i.e. insurance or POD accounts, it will go through probate.
Each of these ways of avoiding probate has advantages and disadvantages that should be considered before making a decision one way or another.
Myth #3: A Will can be handwritten or oral.
Quite surprisingly to most people is the fact that only under extremely limited circumstances, if ever, can a will be executed orally or by hand. Most states, and especially Florida, have very strict rules for ensuring that a will is validly executed.
Myth #4: Having a will is sufficient to preserve and protect family’s assets.
A will is a legal document that expresses your postmortem wishes. It appoints a personal representative or executor to administer your estate. It designates a guardian of the person and property of minor children. It usually covers burial instructions, funeral expenses and estate tax apportionment.
However, it is most commonly understood to govern the transfer of a deceased person’s property to his/her designated beneficiaries. A will alone neither protects your assets nor your beneficiaries’ assets.
A trust or other type of entity must be employed to enjoy asset protection benefits. In particular, a trust is an incredibly valuable and versatile tool to accomplish many of your estate and business planning objectives, including preserving and protecting beneficiaries’ interests/inheritance.
Myth #5: Do it yourself (DIY) computer software (essentially an algorithm) can effectively replace the need for a human attorney.
DIY products are a bad idea for most people. The problem is two-fold: first, it requires self-diagnosis or reliance upon a software algorithm to diagnose. Both are bad news. Second, estate planning deals with family, and every family’s circumstances are complex and unique. Software algorithms are designed for a limited amount of options and cannot possibly address every issue.
I know because I have a degree in computer information science. I know how to program. I think these products are great business ideas, but they are terrible substitutes for human professionals. Furthermore, you are required to accept that you are not receiving legal advice when you sign the waiver at the end.
In my professional opinion, given the supreme importance of your planning being done right and the consequences of it being done wrong, DIY products are dangerously inadequate. Haimo Law offers very flexible plans to ensure that financial limitations are not barriers to proper planning.
Curious to learn more about wills, trusts, probate, business planning and asset protection? Watch the playlists that go step by step explaining commonly asked questions. Don’t forget to subscribe to our YouTube channel (www.youtube.com/haimolawtv)!
Originally Published 2/10/2013 – Updated 8/24/2022
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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