What is a Will?

Understanding the functions and limitations of a Will, the most fundamental document of any estate plan, is paramount to starting the estate planning process.  A Will is the instruction manual or road map for probate and who gets a decedent’s probate property.  Probate is the Court process for transferring title of a decedent’s probate assets to beneficiaries. 

A Will is effective only after a person passes away.  From there, the Will is lodged (or submitted) to the probate court.  Then, upon filing a petition or application to open probate and for appointment of a personal representative, a judge or magistrate reviews the Will, and “breathes life” into it by entering the Will for probate, which essentially makes the Will an order of the court, and also appointing the personal representative of the estate.  This process is referred to as testate probate.

But, again, a Will only controls what is considered “probate property”, that is property that must transfer to a beneficiary through a probate Court.  The most typical/common probate property is real property, business interests, and personal property.  Other kinds of property, such as bank accounts, retirement accounts, life insurance, etc., can also be probate property if there are no beneficiaries or payable on death/transfer on death designations.  If those kinds of accounts have a beneficiary designated, then we call those accounts “non-probate property”.  The point in context here is non-probate property transfers outside the probate process (i.e. outside of the Will) and directly to a beneficiary.  But, if there are no beneficiary designations on such “non-probate” assets, then they become “probate” assets that will be governed by a Will and will need to go through probate Court.

Example 1. Anna, a widow, passed away with a Will, and at the time of her death, she owned a house in her name, personal property (i.e. furniture, clothes, collectables, etc.) a car, and a bank account with no POD/TOD beneficiary named.  Her Will designates her three children as the heirs/beneficiaries of her estate.  In that example, Anna’s three children will have to open a probate estate in Court, and her three children will inherit all of her property under the Will.

Example 2. Gina, a widow, passed away with a Will, and at the time of her death, she owned a house in her name, personal property, a car, a bank account with her two grandchildren as POD/TOD beneficiaries, and an IRA with her nieces and nephews as beneficiaries.  Her Will designates her three children as the heirs/beneficiaries of her Will.  In that example, her three children will inherit Gina’s house, personal property and car.  Her two grandchildren will inherit her bank account, and her nieces and nephews will states that all of her property goes to her children equally.  Her children will also have to open a probate estate in Court.  

Example 3. Bret, a widower, passed away with a Will, and at the time of his death, he owned only his personal property, a bank account with his two sons as the POD/TOD beneficiaries, and his two sons as the beneficiaries of his 401k retirement account.  His Will, however, directs that all of his property is to be distributed to the American Somoa Association.  In that case, Bret’s two sons will inherit all of Bret’s property because none of it would have to go through probate and/or is probate property.  As such, it would transfer automatically without needing to go through Court and without concern for what the Will says.   

So, when you are considering your estate planning, we always look at what kind of property you have (i.e. probate property and/or non-probate property) to determine how your property will transfer if/when you pass.  A Will is a useful tool in estate planning, but it has a very limited scope and purpose.  And, a common misconception is that a Will is used to avoid probate.  The opposite is the truth.  A Will uses the probate Court to transfer a person’s probate property.  

We are here to help at The Law Office of Kevin R. Hancock.  Our attorneys help you achieve peace of mind crafting an estate plan that works best for you, your property and your circumstances. Our attorneys walk you through the process to ensure you understand exactly what your documents do, how they work, and how to ensure that your wishes are carried out.

By Matthew Collett, Associate Attorney