First in a Series on Estate Planning Myths
As an estate planner I like the moment when I see a client’s worried expression shift to relief. Almost every client tells me something he or she is convinced is true about wills and probate. They heard it from their cousin, read it on the internet, saw it in a movie. Here are some of the most common myths debunked:
- You can write on your original, signed will to make changes. If you try to make changes to your will by writing on it, the handwriting will be ignored and the changes will not take effect.
- If a beneficiary’s name changes due to marriage or divorce, the will must be updated to reflect the new name. Unless the identity of the beneficiary is no longer possible using the prior name, no change is necessary. What matters is what was true at the time of the signing.
- After you die, everyone gets together at the lawyer’s office and the will is read aloud. This happens in the movies for dramatic effect. Unless a special and uncommon proceeding known as “probate in solemn form” takes place, no official reading is performed. Your beneficiaries will likely read the will to themselves silently.
- Your Executor can keep paying the electric bill, the gas bill and your home mortgage with the funds in your bank account. The Executor can only do this if the will expressly directs it. Otherwise, your beneficiaries become the owners at the moment of your death and they are responsible for paying these expenses out of their own pockets.
- Your children will treat each other with respect and kindness as they divide up the contents of your house. This one might come true but because your children are human beings who just lost their parent, the odds are stacked against it. Age-old resentments, disagreements over values, sentimentality and simple greed can lead to years of estrangement. It is best to work out the division of belongings ahead of time. Better yet, join the tiny house movement or streamline your life and give much of it away now. You’ll get to hear the words “Thank you!”
- Leave someone a dollar in your will and then they can’t complain. This approach does not insulate your estate from challenge and could give the disinherited person rights that they otherwise would not have. It is better to indicate that you are aware you are disinheriting the person and are doing so purposefully.
- Wills prepared in another state are invalid in North Carolina. North Carolina recognizes as valid wills that meet the requirements of the state in which they were signed. You should have the will reviewed by a North Carolina attorney but it is not invalid just because you moved to North Carolina.
- You can’t appoint someone who lives in another state to be your Executor. The person in charge of your estate, the Executor, can live in another state. You should consider whether this is a good idea due to logistical issues but you can do it.
- Someone will know the answers to the questions on the death certificate. We need a death certificate to probate your will. You want it to be accurate. Whoever contacts the funeral home or crematorium is going to be asked to provide your personal information. That information includes the full names of your parents, where you were born and what you did for a living. You might be surprised by what your children don’t know. Look at a North Carolina death certificate online and record the needed information where someone can find it.
Many more myths abound about probate, end-of-life issues, and powers of attorney for finances. I will address more in future columns and hope that you receive a few moments of relief from reading this one.
First published in Southern Neighbor, January 2015