While the headline of this article alludes to the disadvantages of a Will as your primary estate planning tool, we don’t want to confuse anyone. A Will is a very important tool in estate planning, and EVERYONE needs one. If you have assets, debts, property of any kind, or anyone that depends on you for care or support, you have an estate and need an estate plan. A Will is just one small piece of estate planning, and you absolutely need one!
However, if you want to avoid any of the disadvantages of a Will below, you’ll need to explore other estate planning tools in addition to your Will, such as a Trust. Read more about Trusts here.
Watch this video to learn more about why you may need a Will and a Trust.
So, let’s dive into some of the disadvantages of using a Will alone and explore how Trusts can bypass those disadvantages.
What are the disadvantages of a Will?
A Will Becomes Public Record
Upon death, your Will must be filed in Probate Court. Then the Will needs to go through the probate process to allow for the execution of the estate. Your executor will work to ensure all debts have been repaid, owed taxes have been paid, disburse any specific items listed in the Will or Memorandum with the Will, and then settle and close the estate with the Court.
Through this process, many documents are filed with the Probate Court, and Probate Court records are public records. This means that your Will becomes a public record that can be requested by anyone at any time.
Some people do not care that the details of their estate, finances, and beneficiary information are available to the public. Others deeply value their privacy. If you prefer to keep these types of items private, you should consider a Trust. A Trust is another estate planning tool, but it is not filed in Court so the contents of the same are between the Grantor (trust maker) and the Trustee. Thus, keeping the Trust private.
A Will Must Go Through Probate
As mentioned above, the Will must be filed with the Probate Court and executed through the Probate Court. The probate process can be long and expensive.
The process of probating an estate can take many months—in some cases over a year. This requires gathering documents and statements and filing them with the Court and supplying the Court with accountings and other items needed. The process can be slow– even in the best of times. If things are contested by named beneficiaries or unnamed parties who believe they have a right to speak into or receive a portion of the estate, this can slow the process down substantially.
There are also fees associated with probating an estate. These fees often outweigh the cost of setting up a Trust—which, when done properly, avoids probate altogether. This is because the assets that would need to be transferred to the beneficiaries through the probate process have already been transferred to the Trustee (then successor Trustees) at the time the Trust was established.
So, if avoiding the time or cost of probate is something you want to avoid, a Trust is a great alternative to a Will alone.
A Will Only Becomes Effective Upon Death
A Will is only effective upon death. This means that it does not matter what your Will says if you are still alive. But when you die it becomes a legally binding document. Once this document is legally binding—upon your death—it must be followed. Hence, the need for Probate.
Unlike a Will, A Trust becomes a legally binding document upon establishment—the date of its signing. At that time, property is transferred from one owner (you, the Grantor, or trust maker) to the Trustee of the Trust (often you with successor Trustees named). Upon the death of the Grantor, the Trustee is to follow the rules and guidelines established within the Trust for debts, taxes, and disbursement of the assets within the Trust.
A Will is More Likely to be Contested
Because the Will must go through the Probate process, and because a Will becomes public record, the likelihood of contest, or challenge, is increased. The Probate Court has specific guidelines and deadlines—which allow a period of time in which a Will can be contested. This challenge can even take place after the estate is executed. So essentially, the Court publishes the Will and leaves the Will open to be challenged for a period of time.
Each state has different rules and guidelines for this time period. In Georgia, the statute of limitations to contest a Will is four (4) years. The rules are very tricky here. But, depending on circumstances, the Will can be challenged up to four (4) years after death.
Trusts can also be contested, but it is much less likely. This is because Trusts do not go through the probate process nor do they become public record. Meaning, the general public is unaware of what the Trust says and is unlikely to challenge it because of this.
Every estate is different, so every estate plan is unique. Your situation may be best served by just a Will, but it may not. Your situation may be one that could use the implementation of a Trust.
So, what are the disadvantages of a Will? Now you know.
The estate planning professionals at Siedentopf Law are here to assist you in determining what tools are necessary to best implement your wishes after your death. Give us a call at 404-736-6066 or schedule a consultation through our website to discuss your estate plan today.