5/28/2024

Wills and Probate

Phoebe Stone, JD, MA (Bioethics)

WealthCounsel

DISCLAIMER
This presentation and any accompanying materials are
for informational purposes only and are not intended to
provide, nor should they be relied upon as, legal advice.

Rules and limits can change often. The information

contained herein is accurate to the best of our
knowledge as of the date of this presentation.

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Agenda

What Will We Cover?

The learning objective is to explore wills and probate and be able to

answer the following questions:

● What can a will do as part of an estate plan?

● What can’t a will do as part of an estate plan?
● What is probate?
● What laws govern?

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Overview of Wills and Probate

What Is a Will?
Will: A legal document with instructions for
disposing of a person’s assets after death.
Generally, a will can only be enforced through a
probate court. Also called a last will, testament,
or last will and testament.

Source: EstatePlanning.com Glossary,

www.https://www.estateplanning.com/glossary 6

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What Is Probate?
Probate: The court-supervised legal process of
validating a will, paying debts, and distributing
assets after death (also called administration of
an estate). The probate process differs from
state to state (and even county to county in
some states).

Source: EstatePlanning.com Glossary,

www.https://www.estateplanning.com/glossary/

Are There Ways to Avoid Probate?

● Yes, there can be!

● Examples
○ Small estates
○ Joint ownership with survivorship rights
○ Beneficiary designations, transfer on death, and pay on death
○ Trusts
■ But, generally not when using a will-based plan
■ Note: even when a full probate is not required, some states
may require submission of the will to the court
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Wills versus Trusts
WILL
• Sets out who gets what and how
• No impact on lifetime control
• Probate generally required
• Administration by personal
representatives/executors
(named by the client in will;
court)
• No retitling of assets required
• Generally effective upon death of
the willmaker (testator/testatrix)
How Do I Know Whether to
Recommend a Will?
What is
probate like
in my
jurisdiction?
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REVOCABLE LIVING TRUST
• Sets out who gets what and how
• No impact on lifetime control
• Avoids probate
• Administration by trustee (trustmaker
can name a lineup of successor trustees)
• Funding (transfer and retitling of assets)
generally required
• Generally effective upon the death or
incapacity of the trustmaker
(grantor/trustor) (may also be
immediate depending on terms)
Are there other
ways to avoid
probate, like joint
ownership?
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Key Points

● Wills generally require probate; trusts

generally do not

● There are ways to pass assets outside

of probate even without using trusts

● Probate processes differ significantly

between jurisdictions

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Pros and Cons of Wills

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What Does a Will Not Do Well?

● Generally effective upon death, so no coverage for lifetime incapacity

● Generally unable to avoid probate
● Generally unable to protect privacy

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What Does a Will Do Well?

● Determine who gets what after a death

● Determine how beneficiaries receive their inheritance
● Nominate an executor or personal representative
● Nominate guardians for minor children
○ Standalone nominations of guardianship
○ Including nominations in a durable power of attorney
● Can generally be prepared quickly
● Ensures that there will be judicial oversight

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Summary

A will generally requires probate and,

therefore, does not protect privacy.

However, a will is an effective estate

planning tool and sometimes the
advantages outweigh the
disadvantages.

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Wills: Legal Requirements

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Mental Requirements for Valid Wills

● Testator must have testamentary intent and testamentary capacity at the time
will is executed
● Testamentary intent means that the person who created the document
intended for it to serve as their will
● Testamentary capacity has two parts:
○ Age (18 or 21 years old or emancipated minor)
○ Mental ability: understand the extent of one’s property, natural objects of
one’s bounty, nature of the disposition, and these matters in relation to
each other

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Legal Requirements for a Valid Will

State-specific, but generally,

● must be in writing;
● must be signed, either by the testator or a valid proxy;
● attested by requisite number of qualified witnesses (often two; three in
some states);
● common and best practice for the testator to sign or initial each page;
● common to number pages in “Page X of Y” format;
● self-proving affidavits may be available in your jurisdiction; and
● notarization common.
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Requirements for a Valid

Will Are State-Specific

It is important to know the rules in your

jurisdiction regarding the requisite
capacity of the willmaker and the legal
requirements of a valid will.

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Probate: a Deeper Dive

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Three Phases of Probate

Opening Administering Closing

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Opening the Estate

● Open the case; may include case number, judge assignment, and hearing date(s);
sets up the estate as a matter of public record
● Recognize the will (if testate) or heirs (if intestate)
● Prove the will; may require testimony of witnesses or filing of a self-proving
affidavit
● Note: having a will does not avoid probate; in fact, the Latin word from which
probate is derived has to do with the official proving (probate) of a valid last will
and testament
● Obtain letters testamentary or letters of administration (state-specific, lots of
variation)
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Administering the Estate

● Gather and inventory assets

● Notify creditors
○ Provide written notice to known creditors
○ Publicize for unknown creditors
● Deal with creditor claims
● Sell assets if needed or directed
● Provide interim accountings to the court
● File necessary income tax or estate tax returns
● Keep interested parties adequately informed

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Closing the Estate

● Pay any valid creditor claims and resolve disputes as needed

● Obtain order from court approving transfers (very state-specific, not all states will
have a specific order)
● Transfer assets to beneficiaries (testate) or heirs (intestate)
● Obtain receipts, releases, etc., from heirs
● Provide final accounting to the court, if required
● If taxable estate, closing letter or transcript from Internal Revenue Service (IRS)

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Probate Key Points

● Probate processes (costs, time delay,

etc.) differ significantly between
jurisdictions
● Probate generally involves three
phases
○ Opening
○ Administering
○ Closing

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QUESTIONS

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THANK YOU

wealthcounsel.com
(888) 659-4049
information@wealthcounsel.com

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