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FAQ – Frequently Asked Questions

Estate Planning, Probate, & Elder Law

At The Banchy Law Center, it is our mission to help you understand the legal process in the areas of estate planning, probate, and business formation and elder law. Providing you with the information you need will help you make the best decision for your situation.

If I have a will, do I still need probate?

This question gets asked frequently.  A will is a probate document - it is a roadmap of sorts for the personal representative and the court to follow in order to carry out your wishes with respect to your probate estate.  The real issue in determining whether or not probate is needed is whether you own assets which are in your name and for which there is no other effective disposition.  If you are able to name beneficiaries, such as with bank accounts, investment accounts, insurance, etc., and the beneficiaries survive you, those assets usually do not need to pass through probate.  On the other hand if there are assets for which there is no other disposition, often probate is required to pass them to heirs and beneficiaries.  

I have a trust - does this mean there will be no probate?

That question cannot be answered without knowing more about the trust and how/if it was properly funded.  There are different types of trusts.  There are trusts you create during your lifetime - sometimes called "living trusts" - and there are trusts created by will - sometimes called "testamentary trusts." Testamentary trusts, because they are created under a person's will, always require probate because they require the will to be admitted to probate for their very existence.  Living trusts can be used to avoid probate, but great care must be taken to make sure they are properly "funded" - i.e., assets have been put into them.  Trusts are passive entities - they cannot self-fund.  Assets can be immediately placed in trust (e.g., retitling real estate into the name of the trust), or the trust can be designated as the beneficiary of funds held in things like bank accounts, investment accounts and life insurance.  You must take the necessary steps to make sure your trust is funded, or there will very likely be the need for probate.

Are "online" wills just as good as a will drafted by an attorney?

Maybe, but there is a great deal more risk.  An online will will likely meet the requirements of law - if you follow all of the instructions provided.  This, of course, assumes the instructions are clearly communicated and understood.  Without the ability to asked questions, however, it is sometimes difficult to know.  Even if your will is legally valid, does it carry out your wishes?  You may not know this for sure until it is too late. For example, if you leave more to a beneficiary or their spouse in your will than they would take in the absence of a will, and that person serves as a witness, the law provides that in most instances such beneficial provisions will be invalid to the extent they exceed what the witness or their spouse would have received if there were no will.  An experienced attorney will help you to avoid these sorts of traps.

What if I get divorced and forget to change beneficiary designations?

With a few notable exceptions, in most cases the divorce will act to revoke dispositions of property which are revocable (not all are) and which are made by the decedent in favor of his or her spouse.  This rule does not apply until a judgment of divorce has actually been granted by a court of competent jurisdiction - if you die while the divorce is still pending, this rule will not apply.  If you want your spouse to remain a beneficiary the intent to do so must be clearly established.

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