Common Myths About Wills

Here are some of the common myths about Wills:

Myth 1 - A Will avoids probate.
Only if the aggregate value of the assets passing by the Will are less than $100,000 and there is no real estate, otherwise probate is generally required. If real estate is located in other states, then ancillary probate may be necessary in each such state. The probate process can be burdensome both financially and emotionally to family and friends following death. In Illinois, the probate process takes no less than 6 months and typically 12 to 18 months to complete. During the first 6 months assets are generally frozen and distributions are allowed only by court order, since claims can be filed during this period.

Myth 2 - A Revocable Trust eliminates the need for a Will.
A Will is necessary to transfer items to the Revocable Trust if it was not fully funded during lifetime. In addition, guardians for any minor children are nominated under a Will.

Myth 3 - A Will takes effect upon incapacity.
A Will only has legal effect at death. Upon incapacity, agents under Powers of Attorney for Property and Health Care may be empowered to act, otherwise a Guardian must be appointed and a proceeding in guardianship court initiated.

Myth 4 - You can disinherit anyone, including your spouse, under a Will.
In Illinois, a testator can disinherit his children and almost anyone else. However, he cannot fully disinherit his spouse, unless both spouses have waived the right to be included in each other’s estate in an enforceable pre-nuptial or post-nuptial agreement. Each state has laws that shield a surviving spouse from being disinherited. In Illinois, the surviving spouse can choose between property left in the deceased spouse’s Will or renounce the Will and receive a statutory share, which is one-third of the entire probate estate if the Testator leaves a descendant(s) or one-half of the entire probate estate if the Testator leaves no descendant(s).

If a child is a minor, states typically provide an allowance to support the child until he or she reaches the age of majority. Many states also allow the court to award some support money to the surviving spouse.

Myth 5 - A Will is a private document.
Illinois requires that a Will be filed with the county in which the Testator resided, within 30 days of the death of the Testator. This is true even if probate is not required Once filed, the Will becomes a matter of public record and is available to anyone to review. Thus, it exposes the disposition of your assets, their value and the named legatees. A Revocable Trust, in contract, is a private document that cannot be viewed by the public.