Estate: When A Will Isn't The Way

Many people have the mistaken impression that their Last Will and Testament determines what happens to their possessions when they die. As John, a reader in Maryville, TN learned, that's not necessarily true.

Time and time again we are told about the importance of having a Last Will and Testament (Will). What's a Will, we ask. It tells who gets what when you die,is the classic response. So we come away thinking that by taking the time to draft our Will that we have put our affairs in order. Unfortunately, it is not that simple.

When transfer of ownership of an asset is based on your Will, that item is said to pass through your Will. There is even an elaborate, mandatory legal process involving the courts that ensures your Will is handled just right. This process is called Probate. Most heirs end up using an attorney to navigate the Probate process for them. As a result, Probate normally takes approximately 12 months and can easily cost thousands of dollars.

Many things you own will not pass through your Will. Therefore, what you've stated in your Will has no affect on who receives them. The first group of assets that avoid your Will are those that name a beneficiary. Common examples of these assets are life insurance, annuities, and retirement accounts.

For instance, I own two large life insurance policies on my life. If I were ever to pass away prematurely, it is important for me that my wife and children be taken care of financially. When purchased, I had to decide who would get that money when I died. I named the beneficiaries. Now, if I pass away while those policies are still in force, the beneficiaries I named on that contract are the ones who will get the proceeds, regardless of what my Will says.

The proceeds of a life insurance policy pass by contract, not by Will. All beneficiaries have to do is present a certified copy of your death certificate to the insurance company and the money is paid out. No Will. No Probate. No attorneys or courts. Better yet, the beneficiaries get the money in weeks instead of months or years.

It works the same way with any asset on which you have named a beneficiary. Company retirement programs, IRAs, annuities and even bank and brokerage accounts allow you to name a beneficiary. Properly planned, this can be an effective way to distribute assets at your death.

The second group of assets not controlled by your Will are those that pass by Title. Real Estate and vehicles are a perfect example but this can also apply to bank and brokerage accounts. It's common for most couples to own their assets jointly. When one spouse passes away, that asset passes by title and becomes the property of the other spouse, regardless of what is in your will. Since your Will is not involved, Probate is avoided.

Thirdly, assets owned by a trust do not pass according to your Will and thus avoid Probate as well. The most common type of trust is a Revocable Living Trust. You decide who receives what when you set up a trust. Assets such as bank and brokerage accounts, vehicles and real estate are then titled in the name of the trust. A trust can be the beneficiary of your life insurance policies. It is also easy for personal property to be owned by a trust. Properly funded, a Living Trust can allow someone to avoid Probate altogether.

It is only assets that don't have a named beneficiary, that don't pass by title and that are not owned by a trust that pass through your Last Will and Testament. So instead of being the main document that determines the distribution of your estate, it ends up being the last.

Everyone should have a Last Will and Testament. You need to make sure that you coordinate your desires between your Will, your beneficiary designations and the ownership of your assets. Otherwise, your wishes may not be carried out.

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