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Heritage Tree LogoWhat Does a Will Not Do?

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To learn more about what a will does and does not do, continue reading and give our dedicated and experienced Butler County will preparation attorney a call today.

What does a will not do?

It is important to recognize that a will does not control the transfer of particular kinds of assets, referred to as non-probate property, which by process of law (title) or contract (such as a beneficiary designation) pass to someone other than your estate on your death. For instance, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. Similarly, an IRA or insurance policy payable to a named beneficiary passes to that named beneficiary whether you have a will or not.

What does a will do?

A will allows for the allocation of certain property owned by you at the time of your death, and usually, you can dispose of this property however you choose. Your right to dispose of the property as you would like, however, may be subject to forced heirship laws of most states that prevent you from disinheriting a spouse and, in some circumstances, children. For instance, many states have spousal rights of election laws that allow a spouse to declare a certain interest in your estate no matter what your will (or other documents addressing the disposition of your property) provides. Your will does not control the disposition of your property that is governed by beneficiary designations or by titling and so passes outside your probate estate. These assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits. These assets pass automatically at death to another person, and your will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them. Your probate estate consists only of the assets subject to your will, or to a state’s intestacy laws if you have no will, and over which the probate court (in some jurisdictions referred to as surrogate’s or orphan’s court) may have authority.

Because of this, it is important to review beneficiary designations after preparing your will. Also, note that the property is part of your probate estate and has nothing to do with whether the property is part of your taxable estate for estate tax purposes.

Keep in mind that wills can range in degrees of complexity and can be used to complete a wide range of family and tax objectives. If a will supplies for the outright allocation of assets, it is occasionally characterized as a simple will. If the will creates one or more trusts upon your death, the will is usually called a testamentary trust will. On the other hand, the will may leave probate assets to a preexisting inter vivos trust (created during your lifetime), in which case the will is called a pour-over will. These preexisting inter vivos trusts are often referred to as revocable living trusts.

If you have any additional questions or concerns, do not hesitate to give our firm a call today.

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