Misconceptions about Wills and Probate
Wills and Probate is a morbid topic that most of us avoid for as long as we can afford to. We avoid learning about it because there are so many fun things to learn while we’re still alive right? But sometimes not having perfect knowledge about a topic may not be as bad as having misconceptions about it.
This article aims to dispel the myths surrounding Wills and probate. It aims to make the reader well aware of the various important matters relating to estate administration.
Government becomes the owner of your legacy if you die without a Will
Most people believe that if they die without a Will their legacy becomes a part of government treasury. But this is nothing more than a misconception. It ranks first on our list because it paints the government as an opportunistic institution simply waiting for people to die without a Will.
The judiciary assumes control of the estate only for as long as there is no executor to administer its affairs. Once an executor is appointed, it is his or her responsibility to look after the financial affairs. The judiciary is involved only as long as gift distribution is concerned. But the government certainly has no authority to seize an asset unless it goes unclaimed for a period of twelve years without anybody claiming a right to it.
The only and the biggest disadvantage of dying intestate is that your estate gets distributed according to the intestacy laws and not in accordance with your wishes. People whom you wouldn’t have wanted to inherit from your estate would suddenly find a claim to your legacy. Even that long lost relative whom you couldn’t stand even for a minute may inherit from your estate against your wishes.
The best way to prevent your inheritance from becoming that of others is to write a Will and select the right Will storage option as it is important to keep it safe. Writing a Will ensures that it’s you and not the judiciary who gets to decide who should inherit what.
Probate Can Cost a Fortune
There are many stories out there about probates and how much they can cost, that are scary enough to cause nightmares to people. These stories often talk about the extent to which an estate can get depleted after it goes through the process of probate, making you wonder if you would be left with anything at all.
But this is nothing more than a commonly held misconception. There are several probate shortcuts that are made available to people with smaller estates. There are also ways to completely avoid probate. In this way there are ways in which you can minimise the costs of probate.
In most cases, the cost of probate shouldn’t exceed 5 percent of the total value of the estate. The expenses can increase only if the Will is disputed and the case goes to court. In such cases, the probate charges can skyrocket as the appointed executor may have to hire the services of a lawyer.
Probate can take years to complete
Another misconception most people have about Wills and Probates is that it can be several years before the Probate process gets completed. Some people believe that it could be years before the beneficiaries receive their entitlement.
Although the amount of time taken for a Will to get cleared by Probate depends on the complexity of the case, no case usually takes over a year to get resolved. If the case is simple and straightforward it may get resolved within just a few weeks of application. The only formality which needs to be completed is that the personal representative is required to collect the assets and pay off any debts and taxes. Once this has been taken care of the assets can be distributed as per the Will.
The time taken for distribution of gifts can increase if creditors have been called forward to make claims. In these cases, the delay is mostly due to printing of advertisements and the deadlines given to creditors to come forward and make a claim. A delay is also possible in cases where the estate is large and there are many financial considerations that need to be taken into account. If the estate is still generating income it may be another few months before the estate can be resolved.
As mentioned above, family disputes is another major reason why execution of Wills end up consuming a lot of time and money.
Eldest son becomes the Executor
It would be safe to assume that this misconception is generally held by those who firmly believe in anarchy and nepotism. Appointment of Executor is completely left to the testator and they can select any person whom they believe to be fit for handling a responsibility of this magnitude.
The appointed executor may or may not be a family member. If the testator believes one of their friends to be more responsible and trustworthy for handling an estate, he or she is free to make that choice. The family members can raise questions over the appointment but there is little that one can do if there’s a legally valid Will in place. Another case wherein the appointment of an executor can be challenged is if the testator refuses to take up the responsibility.
In the absence of a Will, things can be quite different. The court gets to decide who should be appointed as the executor. The family members apply for the role of an executor and the person closest to the deceased in terms of relationship usually gets appointed as the executor.