6 Common Misconceptions About Wills and Probate

Nowadays we can find almost any answer on the internet. You are like one click away from getting any information. The downside of the incredible modern technology is that with millions of information, comes many misinformation too. Especially when you are going to search on complex topics like wills and probate. It becomes very tough to distinguish truth from false for an inexpert.

That’s why we are going to talk about some of the myths running around wills and probate. We are going to debunk those myths and also discuss why these are circulating in the first place.

Misconceptions About Wills and Probate

The State Gets Everything If Someone Dies Without a Will

Leaving without a will is troublesome. It can raise problems at property division time and much other decision-making time. But the property will automatically go to the state is a straight myth. It’s true that in many cases, the state takes control of distributing the estate. That’s why maybe the myth is circulating.

Every state has its own inheritance law. But generally, the children and spouses are the primary contenders of the inheritance. And then grandchildren and great grandchildren. If you have no descendant, then your close relatives will inherit your property. The state only gets estate when no relatives are turned up. 

Probating an Estate Takes a Long Time

It takes some time to probate an estate. But that doesn’t mean it takes a year. The only possible delay gives the mandatory time that the state gives creditors time to claim. The time varies state to state. The time begins when the local paper publishes the news of probate proceeding. It runs for four or five months.

After that the representative has paid all of the debt and taxes of the estate, it can be closed. Usually, the tax problem can delay your probate time.

Probate Cost Can Eat up Your Estate Properties

I saw this misconception among many people. I don’t say that probate cost is enormous, but it’s also substantial. A good fortune is going to be spent on court and lawyer fees. Probate is not even a mandatory procedure. Only the properties owned by the departed person go through the probate process. If the asset is small, the family can take probate shortcuts. It’s less costly than usual probate.

But, if the estate goes through regular probate, the cost would not be more than 5% of the total estate.

Probate Cost Can Eat up Your Estate Properties

I Can Choose Not to Leave Anything to My Spouse

In many cases, couples decide not to leave anything for each other. They may want to leave their assets to their children or children from a previous marriage. It all works right until the survivor changes his/her decision. The state allows the surviving spouse to claim the share of the deceased spouse’s property. It is called “elective share.”

State law may vary, but usually, the spouse may get one-third of the estate or the right to live in residence or one year’s allowance.


The Oldest Child is Entitled to Be the Executor

It becomes something of a norm that the oldest child would be the executor of his/her parent’s estate. But it’s not the law. You could be the executor if the deceased person named you in his/her will. If the dead person doesn’t leave a will, or the person named in the will is unavailable, then the court decides who will be the executor of the estate.

Probate Can Be Avoided if I have a Will

A will has nothing to do with avoiding probate. If you want to avoid probate, there are ways to do that. For example, you can create a revocable living trust. It can help you to minimize or avoid probate. Whatever written in your will, it will be submitted to a probate court after your demise.

The Bottom Line

Wills and probate is a complicated subject for many people. That’s why if they learn something about it, they take it for granted. It creates many confusion and problems when you have to deal with estate planning and estate administration. The best thing you can do to consult a wills and probate attorney before starting estate planning.