A Last Will & Testament is a document that is created for the purpose of directing where someone’s assets are going to go if they pass away. The person who creates the Last Will & Testament is the Testator (or Testatrix if they are female). The Testator decides where their real estate, cars, bank accounts, and personal items are going to go if they pass away. The Testator also chooses a person to make those transfers, that person is called the Executor (or Executrix if they are female).
A Last Will & Testament is just paper, without any power, until it is filed with the Probate Court. The Will is supposed to be filed within thirty (30) days of the Testator passing. When a Last Will & Testament is filed with the Probate Court, the Probate Court Judge will review the document for legality and make the decision to appoint the Executor. It is the job of the Executor, once appointed, to gather and safeguard all of the assets of the person who passed away. They are also responsible for determine the creditors of the estate, paying the bills of the Testator from the assets in the estate, and then accounting for all of the assets and payment of bills during the time they are the Executor. Usually the entire process takes about one (1) year.
Yes, you understood correctly! A Last Will & Testament MUST go to Probate Court and a Probate Court Judge MUST appoint the Executor. Probate Court is designed so that there is a consistent process to wrap up the affairs of someone who passes away owning assets. For example, if you own a house and want to give it to someone, you must sign a real estate deed to transfer the house to them. If you pass away, you are no longer able to sign the real estate deed. The Probate Court appoints an Executor so that someone would be able to sign the real estate deed for you. The Probate Court process also creates a consistent process so that people who are owed money know what to do to get paid, and to keep track of what happens with assets to try to prevent them from being lost.
So, what did it mean when you heard someone say “Oh, you have a Will, you are all set.”? It meant that you had created a legal document that set forth your wishes, so you could direct who would be you Executor and where your assets would go. It does not avoid Probate Court, it avoids the laws of Descent, Distribution and Advancement.
These laws are designed so that if someone passes away without a Last Will & Testament, the law will direct where those assets will go. The law says that if your estate is less than $250,000, it will go to a surviving spouse, but if your estate is larger, there are rules that may not result in everything going to your spouse. Depending on your situation, it may even be possible for your children from a prior marriage – even if you haven’t seen them since the divorce – to inherit some of your assets if you do not have a Last Will & Testament.
Perhaps it may be time for a review of that Last Will & Testament, or if you do not have one, to discuss your options. For more information or to schedule an appointment to discuss your situation, contact us at 603-628-1900 or via email through our contact us page.