Wills and trusts are complicated but essential estate planning instruments. While setting up a will and trust is a complex endeavor in and of itself, administering and executing them is just as complicated and requires the expertise of a premier attorney. So much misinformation is circulating surrounding these documents, so we are here to set the record straight. Here are common misconceptions about wills and trusts:
Common Myths About Wills
The Oldest Child Is Entitled to Act As Executor
One common misconception about wills and trusts is that the oldest child is automatically entitled to be the executor of their parent’s estate. There are two factors to consider.
If the deceased designated an executor in the will, this is likely the person the court will appoint. If they didn’t appoint anyone, the court will. Courts do not care about sibling order and adhere to state law, which outlines a priority list in these situations.
Still, these laws are complex, and grasping who will be appointed executor and what renders an appointee ineligible requires premier guidance from an expert attorney.
If a Will Is Not Created, an Estate’s Assets Are Fair Game
Another misguided notion about wills and trusts is if the deceased dies without a will, their assets are free for the taking.
This assumption is, however, untrue as courts have a complicated and specific order of succession they use to determine who inherits property from an estate. More importantly, without a will, this process and the courts are the only ones able to make this decision.
Ultimately, understanding the process for administering an intestate estate and determining this order of distribution requires a preeminent estate litigation attorney.
The Deceased’s Debts Die With Them
Unfortunately, if someone dies with unpaid debts, the executor must settle them using funds available in their estate. Only after deducting funeral expenses, debts, and taxes is the executor allowed to distribute the rest of the assets.
If there are significant debts to settle, this can cause an estate to remain stuck in probate for an extended period. Ultimately, only a premier estate lawyer can determine debts owed, anticipate how long an estate will stall in probate, and expedite this process.
Common Myths About Trusts:
A Trust Protects Against Creditors
While some trusts protect estates from creditors, a common misconception about wills and trusts is all trusts offer protection from them.
Depending on the type of trust, an estate can still be liable for debts. Trusts intended to protect assets usually don’t protect those assets from events that occurred before establishing the trust, such as the creation of debt.
To understand what is and isn’t protected from debt, consulting with an attorney is imperative.
Trusts Only Benefit Beneficiaries
Many people mistakenly consider estate planning something that only benefits the people they bequeath assets to.
However, this is not the case. Living trusts manage one’s assets and estate while they are alive. More importantly, this instrument can facilitate handling the creator’s affairs if they become incapacitated and ensure assets are managed per the grantor’s wishes.
Trusts Always Avoid Probate
One of the most common myths about wills and trusts is they always avoid probate. While most assets in a trust can escape probate, there is a significant condition: assets not included in the trust are still subject to the probate process.
Things like trust litigation can also cause trusts to enter probate. Only an expert estate litigation attorney can interpret the document, understand if you are dealing with a trust that must go through probate, and advise you on what to expect and your legal recourse.
Get Expert Help Dealing with Wills and Trusts Today
Whether you want to know about how a loved one dying without a will impacts their estate and your inheritance or the kind of protection a trust can grant from creditors, consulting with a premier estate litigation lawyer is essential. These instruments are critical to protecting and preserving the integrity of an estate, but they are complicated, and there are countless myths surrounding them. Fortunately, at Gokal Law Group, we can help you gain a better understanding of these documents and debunk common misconceptions.