Probate is a technical and often misunderstood area of the law. Here are some of the more popular probate law myths.
1. There Will Be a Reading of the Will
Many fictitious depictions of probate law include a reading of the will, but in reality, there won’t be an actual reading with your attorney or representative. While readings may have taken place more often in days of illiteracy, they are far less likely to be done today unless it’s absolutely required for the beneficiaries. Typically, beneficiaries will only receive a copy of the will, and if they don’t, they become public documents once submitted to a probate court, allowing anyone to read it at any time.
2. You Don’t Have to Go Through Probate if You Make a Will
Probate simply refers to the collection of laws applying to the property that an individual leaves behind following his or her death. The property itself is referred to as the estate. This means that after the person’s death, the estate will be transferred to new owners or designated beneficiaries. The will and testament usually determine those beneficiaries.
While wills can avoid probate in most cases, every will needs to be initially filed with the Probate Court. A large number, however, are simply left without any further action being taken. In Illinois, wills are only required to go through probate if they exceed $100,000 or if there are certain disputes regarding the disposition.
3. You Can Avoid Probate with a Revocable Living Trust
This myth is actually true in part as well but often exaggerated. When a person creates a revocable living trust, he or she creates a legal entity that is capable of owning a certain property. If that person uses it to own an individual property, that property can actually avoid probate as it survives the person’s death.
It’s important to understand that to avoid probate, it’s not enough to simply have a living trust in place. Individuals must also make sure that all property is transferred to the living trust. Failure to do so means that the property will be required to go through probate.
These are simply a few of the myths out there regarding probate law, but when going through the estate planning process, a probate lawyer can help individuals and beneficiaries understand what they can or can’t do regarding wills, living trusts, and estates.
