We recently made our will with an attorney. We chose my brother as our Personal Representative and told him about the task, and he agreed to do it. My wife believes that after we die, the will still goes to probate court, while I am certain that because our PR is close to us, that won’t be necessary. Will you settle this debate? Do we really need a judge, or is our will enough to settle our estate outside of court?
It seems like your wife was paying close attention at the attorney’s office: even with a will, your estate will go to probate court to appoint the Personal Representative.
There are several reasons for this: first, because the judge needs to confirm that the will is valid and created by you. This is important because you wouldn’t want just anyone to be able to forge a will or to appoint themselves Personal Representative of your estate without a third party judging whether they actually have legal power. Wills have different requirements to make them legal in different states, and a judge needs to determine that the will meets those requirements, so the judge can legally appoint your Personal Representative. Consider the will as your nomination of Personal Representative. That individual is only given power and authority if it is granted by a Court.
In addition, your Personal Representative, however willing they might be right now, may have a change of circumstances that means they cannot accept the responsibility of closing your estate. Your brother might have a serious health issue, or move away, or he might be unable to take on more responsibility at the particular time of your death. He might even predecease you. In any of these cases, the judge will need to appoint a different person as Personal Representative, which means going to probate court. If you’ve made a comprehensive estate plan, you should have accommodated this possibility by offering a back-up Personal Representative and perhaps even a professional fiduciary option.
Having a will does not mean that you avoid probate. Think of your will like a roadmap for a judge–it provides the directions for your desired outcome for your estate. In some states, it’s beneficial to create a revocable living trust (RLT) in order to avoid probate court. There are other circumstances that may warrant creating the RLT, based on your state.
If your goal is to avoid probate court, then you might consider creating an RLT, but there are many states where this isn’t truly beneficial. A will is a flexible tool, and in the state where I practice law, it accommodates almost everyone, and I highly recommend creating a will rather than the more convoluted process of setting up a revocable living trust.
When it comes to choosing a Personal Representative, you should consider many factors: does this person have the appropriate financial skills? Do they know my values well? Do they have the time to take on this responsibility? All of these questions are covered in the Side by Side Planner.
Finally, I want to add: going to probate court does not have to be a messy or difficult situation for a family. In most cases, if you’ve chosen your Personal Representative and they’ve agreed to the task, the probate court can be a simple process. Don’t think that because a revocable living trust is more expensive and more complex that it’s automatically the right choice. In the Side by Side Planner, there are deeper explanations of both the will and revocable living trust, so you can make a more informed decision about what’s right for you. Visit www.sidebysideplanner.com for more information.