Common Myths About Wills And Probate

Probate Lawyer

Most people don’t know the ins and outs of wills, trusts, or probate, as they are topics that most of us don’t really want to deal with. However, there are some basics and some common myths that need to be recognized. While it isn’t a fun process to talk about, it is a valuable set of information that will come in handy at some point.

While there are plenty of facts out there, there are also plenty of myths about what probate is and what it does. Here’s some of the most common myths about probate so you can avoid falling into the misconceptions. 

  • If someone dies without a will, the state gets everything

While there are plenty of reasons to write a will and worrying about the state snatching your family’s inheritance is not one of them. If you die without a valid will, then state law does kick in and every state has its own rules for who inherits what.

In general, this means that your spouse and your children are the first in line to inherit. The rules going to vary from state to state and having a lawyer that understands these rules is key. In some states, a surviving spouse and minor children share the deceased parent’s assets. The state really only ever gets assets when there are no relatives that can be found. When this happens, it is called escheat and it is very rare.

  • It takes years to probate an estate 

The reality is most estates don’t take years and years to resolve. Typically, the only delay is the period, which is mandated by state law and variation state to state, is the one that gives creditors time to file claims. The length that the creditors claim window is open also varies from state to state. A lawyer is going to be able to tell you how long a creditor has filed claims.

Most estates are finished within a year. Some of the most common reasons probate can drag out are family fights, a very large estate, and ongoing income. If none of this is an issue, then you can expect to have your estate settled within a year.

  • The oldest child is entitled to be the executor of the parents’ will

Just because you’re the oldest sibling doesn’t mean that you’re going to be the executor of your parent’s will. If they have named an executor in the will that isn’t you, the court will appoint that person unless there’s a very good reason not to. If there is not a will or the person named as executor in the will cannot or does not want to serve, the court will appoint someone. However, sibling order is not a factor courts take into account. In most states, the surviving spouse or domestic partner is first in line, and then comes adult children.

It’s often better if siblings agree that one of them will serve as the personal representative and will keep others well-informed about the probate court proceedings. This still doesn’t mean as the oldest sibling, you will be put in charge.

Hiring a probate lawyer like our friends at Theus Law Offices is a great way to start the process of probate.