When there is ONLY a Will!
These are a few of the difficulties that arise when ONLY a Will is put in place:
Difficulty #1: Instructions to Probate Judge. What is a Will? A Will is nothing more that a letter of instructions to Probate Judge about how your estate will be divided upon your death. In essence, a guarantee of probate.
Difficulty #2: Unequal Distributions are Possible. A Will deals only with property owned in the decedent’s name alone. Jointly held property (JTWROS) passes to the surviving joint owner – and is not distributed according to the Will. So, for example, if a Will says that all property is divided equally between three children, and one child is the joint owner on a $100,000.00 bank account with the decedent, that bank account is not divided equally with the other children. The bank account passes to the surviving joint owner by contract law, not by the Will in Probate Court.
Difficulty #3. Wills require Conservatorships for Minor Children. Bequests to minor children require the creation of Conservatorships and the annual reporting to Probate Judges of all income and expense for each minor child until age 18. Some Probate Courts require approval prior to the expenditure of funds for the minor child, or before the withdrawal of funds from the minor’s Conservatorship Estate. Upon reaching age 18, the balance of the Conservatorship Estate is paid directly to the 18–year-old child without restrictions – to spend as the 18-year-old sees fit. Usually, not a good decision. In Wayne County, a bond is almost always required by the Probate Court.
Difficulty #4: Guardianships may be required for Minor Children. A Will may require the creation of a Guardianship Probate Proceedings where a parent dies while the child is still a minor, especially in single parent situations. If the Will does not appoint a Guardian, the Probate Court has the power to appoint one, or a public administrator as Guardian who is a stranger to the family. A Court appointed Guardian, can be a different person than the Conservator, which just makes caring for a minor child more difficult and expensive since two different people may be making the care and support decisions for a single minor child.
Difficulty #5: Inventory Fees. Probate Courts require the payment of Inventory Fee that is assessed on the total value of the Probate Estate, usually less than 1/2 of 1%. This fee is completely avoidable with the use of a funded revocable trust for the decedent’s personal and real property.
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