A will is an important planning tool, and can be used to help accomplish your distribution desires. However, there are some common misconceptions about wills that may cause an estate plan to fail.
Misconception #1: It will distribute all of my property at the time of death.
For many people, this is simply not true. Many individuals own property jointly with a spouse, a child, or a friend. If joint ownership is with right of survivorship, property will bypass the will completely. It will pass to the joint owner, regardless of what the will says.
Retirement plans have beneficiary arrangements. Again, the proceeds bypass the distribution outlined in the will and pass on to the named beneficiaries. The same is true with property placed in trust, transferred with a retained life estate, or any other form of contractual arrangement used to transfer property.
As a basic rule, the only property that will be distributed by your will is property that you hold in your name only at the time of death.
Misconception #2: The personal representative I’ve named in my will can manage my property in case I become incompetent prior to death.
The will does not become effective until the time of death, and has no authority over your property during your lifetime.
To effectively manage property in case of incompetency prior to death, you can use a trust, established and funded during your lifetime. Or you can give an individual a durable power of attorney, allowing that individual to manage your property in the event that you become incompetent. This management cannot be provided through your will.
Misconception #3: If I have a will, I will avoid probate on my estate.
The term “probate” really means to prove or process the will. The only way that probate can be avoided is to bypass the will through joint ownership, trusts, beneficiary designations, or other contractual arrangements.
Misconception #4: If I have a will, I will avoid taxes on my estate.
Unless your will incorporates tax planning, or unless during lifetime you have placed the property in a trust designed to avoid taxes, your estate will be fully subject to the tax laws in effect at the time of your death.
There is a credit against taxes payable that allows each individual to distribute a portion of the estate tax free. Your will can also create a trust or other tax planning tools that will avoid additional taxes. But the simple fact that you have a will does not guarantee tax planning.
If your will does provide tax planning, but you establish joint ownership or other contractual arrangements to bypass the will, your tax planning will not be carried out.
To accomplish tax planning through your will, at the time of death you must own sufficient property in your name only to fully fund the tax avoidance trust established in the will. If you own all of your property jointly with a surviving spouse, your estate will be taxed as if you had done no tax planning.