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Vermont Estate Planning Blog

Monday, February 11, 2019

Wills: Not as Powerful as You Think

Without question, the most common misunderstanding about a Will is that it avoids probate.  THIS IS FALSE.  It’s almost the same as believing the bank will accept your Monopoly money.

Imagine this: your uncle passes, and you are named Executor in his Will.  Can you take a copy of that Will to his bank and access his funds?  Not unless you are the Hulk using your super strength to open the bank vault at night!  The Will on its own carries no legal authority.  It is just a piece of pretty paper expressing someone’s wishes about the later settlement of his of her affairs—nominating someone to be in charge and describing how to distribute any remaining assets.  A person named in a Will as Executor only obtains power to follow those wishes when the Probate Court allows the Will and officially appoints an Executor.   At such time, the Court will provide the Executor with a Certificate of Appointment, often with a gold seal or other official marking.  And that Certificate is what the Executor can take to the bank (or other financial institution) to access funds of the deceased.

Probate is a legal procedure intended to assist families with the settlement of a deceased person’s estate.  The need for probate bears no correlation to whether or not the deceased had a Will.  Whether or not probate is required depends upon whether the deceased left assets that can not be accessed by another.

No surviving joint owner on financial account or real estate deed?  Probate required.  No designated beneficiary on life insurance or retirement account?  Probate required.  Have a Will, but no surviving owner or beneficiary?  Probate required.  No difference!  Even if you are a superhero.

Don’t have a Will?  If probate required, then state law will determine your heirs.  That’s the difference. 

 



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