By Dan Barney
Estate Planning & the Law
Last week we reviewed the purpose and basic methods of probate. Because probate is an area of great interest to many people, it is appropriate to review a few of the most frequently asked questions relative to probate.
• Is a will necessary for probate? An estate can be probated with or without a will.
If the decedent had a will, the proceedings are “testate.” If the decedent died without a will, the proceedings are “intestate.”
If you have a will the only way to enforce the will is via a probate. Many people misunderstand this and think that because they have a will they will avoid probate – not true!
• What is the difference between testate and intestate proceedings? In a testate proceeding the terms of the will govern probate. The personal representative will be named in the will and the wishes of the deceased will normally be implemented.
These wishes normally include a list of who gets assets owned by the decedent. The distribution can be a simple percentage split between listed persons or it can include a very detailed list of assets to be given to a series of individuals.
An “intestate” proceeding distributes assets according to a predefined set of rules based upon heirship and family relationships.
• Are there limits to how you can distribute assets? Within reason, you can distribute your assets in any manner you wish. There are two significant exceptions to this freedom, however:
A. Spouse – You cannot disown your spouse in your will unless they consent and fail to contest.
A surviving spouse is normally entitled to an “elective share” of at least one half of the joint property of the marriage. This rule necessitates a prenuptial agreement if property is to be kept separate from the joint property of the marriage.
Note that in some cases a spouse may choose to honor the will of a spouse even if it provides less than the elective share. This is sometimes done for tax or other reasons.
B. Children – A child may not be omitted from a will without a special provision. Thus, if a child is omitted unintentionally from a will, that child may apply for his proper share as an “omitted child” also called a “pretermitted child.”
On the other hand, if a person wishes to disown a child, he may do so if that intent is clearly and concisely provided in the will itself. If it is desired to disown a child, it is best to specifically state your intent to do so and to specifically name the child in the will. No specific reason need be given although it is desirable to state a reason if it can be clearly stated.
In a nutshell, if you intend to disown a child you must specifically state your intent to do so in your will. Normally, verbal or other evidence outside the will will not be admissible evidence of your intent.
Next week, more common questions regarding probate.