A Will Doesn't Do What You Think

If you have a will, you probably feel like you've handled the adulting part of your life. You signed the paper, you named who gets what, you pick the person in charge. So you assume your family is protected and everything will be simple. Here's the gap nobody explains clearly. A will is not a skip court document. A will is a tell the court what you want document. It's a grease slide right into the probate process. Which doesn't mean it's bad, it just means that there's a misunderstanding about what a will does. A will has to be admitted to probate. Which is a court supervised process where the estate is administered and the assets get transferred. The basic architecture of probate. And once you understand that, a lot of things click into place. So today I'm going to walk you through this in plain English. What a will does well, what a will does not do at all. Why probate can be slow, public and expensive. Why a living trust is often a missing piece if you want privacy and control. Let's start with the biggest myth. Myth number one. A will avoids probate. Reality. A will does not avoid probate, it usually triggers it. People hear will and think, this is my private plan. But the process often goes like this. Somebody dies, family finds the will, then the family has to go to court to open probate. So the executor has legal authority to act and assets can be transferred. And here's where people get blindsided. Probate is a public process. In many places, when a probate case is filed, the will becomes part of the public record, meaning people can access it through court records. Now, let me give you a story. Number one, because this is the part people don't like to talk about. Public records can literally attract predators. When you file a probate case, you're often creating a paper trail that includes names, relationships and the type of assets involved. In many cases, the real estate address is not exactly a secret. There has been reporting on scams that specifically use public probate records to target grieving families. The playbook is simple. Scammers impersonate professionals, send fake invoices, claim there are urgent fees and try to get paid while the family is overwhelmed. And it's not just invoices. Vacant properties can be a magnet for crime. Criminals have been known to use publicly available information, like obituaries and public filings, to figure out when a home is likely empty. The probate records might read like a shopping list to those thieves. Separately, title and deed fraud has become a major issue in a lot of markets. The National Association of Realtors has warned that title pirates often target vacant properties. Thieves can use probate records to find out this type of information as well. So when people tell you probate is no big deal, understand what they're leaving out. Public process can create public exposure. Public exposure can create real risk. Myth number two. My will protects me if I'm alive but incapacitated. No. A will has zero authority while you're alive. This is really the second big surprise. If you get sick, have a stroke, get into an accident or develop dementia, your will does nothing for you in that moment. Your family can't use the will to manage your bank account. They can't use the will to sell a property. They can't use the will to sign for a business decision. A will becomes operative at death, not during incapacity. And if there's no solid incapacity plan, families can end up in guardianship or conservatorship proceedings to get someone appointed with authority. And that can mean court oversight, time, expense and stress right when your family is already under pressure. A friend who practices in that area said if you think probate is bad, wait until you try getting a conservatorship. It's a mountain of paperwork and expense. Myth number three. A will keeps my wishes private. Reality. Probate can make your family's business public. Once a will is filed with the court in probate, it's treated as a public record. This means your plan, your executor, your beneficiaries and often the broad picture of what you own becomes easier to find than most people realize. And I'll tell you something else that's uncomfortable but true. Public records don't just alert scammers. They can attract family conflict too, which brings me to story number two. Will contests can drag on for years. People assume the will is a final word. In reality, wills can be contested. And when they're contested, it can delay everything and burn money. Even consumer-facing legal commentary acknowledges that a will contest can last months or even years. If you want a high-profile example, look at what happened to Aretha Franklin's estate dispute. That conflict ran for years after her death before a jury resolved which handwritten will controlled. If you want the extreme version, look at Anna Nicole Smith litigation. It was all around her late husband, and it was a saga measured for decades with substantial legal maneuvering over a long period of time. Now, you don't have to be famous for this to happen. Regular families fight over undue influence, capacity issues, last-minute changes. The caretaker story. I leave something to the person who is caring for me. A sibling who says, that's not what mom wanted. And here's the part that really hurts. While the fight is going on, people often can't move forward. Assets can get tied up. Real estate decisions get delayed. But more importantly, families fracture. So what does a will actually do well? I'm not anti-will. A will is still important. A will is excellent for naming a guardian for minor children, naming an executor to administer the estate, directing where assets should go in a small estate in certain states. And it cuts off creditors. So I'm not saying don't do a will. In fact, a living trust oftentimes includes that will. But it's not the whole plan. A will is one tool, not a comprehensive estate plan. Now let's talk about story number three, because this is one that hits homeowners hard. Number three, probate can be very expensive in certain estates. Think California. California is a perfect example because it has a statutory fee system that's widely discussed and easy to illustrate. In California, they have a probate code that lays out a percentage-based fee schedule for ordinary attorney compensation and probate. So for example, 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $9 million, and so on. California probate code provides a similar statutory compensation structure for the personal representative as well. So in plain English, there are scenarios where both the attorney and the executor compensation can be calculated using statutory percentages. And here's the kicker. Those percentages are commonly applied to the gross value of the estate, not the net value after you pay off debts. The gross, meaning a property can be fee calculated based on its appraised value, even if there's a huge mortgage on it. So let me give you a clear example. A decedent passes away with an average home, say $850,000, plus they have some additional assets that require probate. Some of these, like let's say it's a 401K, some cash, some other things, these may have a beneficiary already and avoid probate. Let's just say that you have extra assets in the zone of $250,000. So the total estate is just over $1.1 million. And by the way, this is average. For this estate, statutory attorney's fees would be $24,000. The executor fees are $24,000, so there's $48,000 in fees. And these are ordinary statutory fees, $48,000. Extraordinary fees can be added if there's litigation, real estate sales, tax work, et cetera. And this is even if the home has a mortgage on it. So you have an $850,000 house and you owe $700,000. This is why you'll hear people say probate can absolutely be brutal. You owe $48,000 and you have a few hundred thousand dollars of estate. And it's not just the timeline, it's the math. Now a quick nuance. Probate costs and procedures vary by state. I'm using California as an example because the statutory fee schedule is explicit in the code. So what changes the game and avoids this? For a lot of families, the answer is really simple. It's a living trust. And what does a living trust do differently? A properly set up living trust is used to avoid probate for assets titled in the trust. It provides continuity if you become incapacitated. In other words, a successor trustee is already in there and they step in and advocate for you on your finances if something happens to you. Increased privacy. The trust is private. Will ends up being public. So because you're not pushing as much of your plan through a public probate case, you have privacy. You also have increased control because you do not have to distribute everything. You can hold it in trust and provide for things like education, health, support to ensure future generations are cared for and a bad divorce or lawsuit doesn't waste your estate. You can put teeth in the trust to prevent contests. Like if you contest this thing, you're out. There are a ton of reasons, but at its core it's about control and avoiding unneeded pain, suffering, and the expenses for your errors. So here's the simple fray work. If your goal is keep your estate private, make the process fast, stay out of court, make incapacity less of a disaster, then you should at least consider a living trust as part of the plan. And if you're thinking, I'm not that rich. I don't need that. I'll push back. This isn't about being rich. This is about being clear. This is about reducing friction. It's about protecting your family from court, conflict, exposure, and opportunists. So what should you do next? Step one, stop assuming the will is the plan. Step two, decide what you're optimizing for. Is it privacy? Is it speed? Incapacity protection? Reducing legal conflict? Keeping your real estate out of probate? Creating a legacy? Ensuring your estate does not get wasted? Like, pick them out. And step three, get educated. Before you sign documents you don't understand. Because the worst plan is one that gives you false confidence. The good news is that proper planning doesn't have to be painful or expensive. And if you want to learn more, you have a really simple option. You can book a free estate planning strategy session with an experienced advisor. I'll put them in the show notes. As always, there's a ton of content on this channel. So like and subscribe and turn on notifications and you can learn more and make better decisions, wise decisions, that actually benefit you. Best of luck.