Page 44 - Senior Link Magazine Summer 2017- Online Magazine

A brief discussion of

written by Lee Franks
WILLS & PROBATE

Most people know some vague something about a document according to your wishes might work, but if Ed turns out to
called a will or last will and testament, and many people have be a bad actor, or if Ed’s own creditors are breathing down
heard of a legal ritual called probate. One might think that given his neck, then your plan might not work out. A properly
such widely spread knowledge, even if it is mostly general, that executed will forms the first step to insuring that your intended
the average Joe or Jane would have some understanding of one beneficiaries receive what you wanted them to get.
or both topics; my experience suggests otherwise. Based on the
questions that I consistently get asked, it seems that most folks Maybe you can understand the ‘why’ of a will better with an
know that a will says who gets their stuff upon death, but have example of what can happen if you die without one. Let us
only the haziest idea why such instruction might be necessary, look at a situation that has become more common in recent
or when the will actually becomes effective. Not knowing the decades. Robert, who had a child from an ill-advised hook-
why or the when contributes to the almost complete confusion up after a night of partying in college, married Carol, a bright
regarding the how – probate. The pages of this fine publication and responsible young lady who effectively moderated his
do not have enough space to explain wills and probate in much lifestyle and guided him into respectability. Initially penniless,
detail, but a few paragraphs should suffice for some basic (and they together built a successful business manufacturing
very simplified) discussion. designer Bibles which they marketed to churches nationwide.
Unhappily, they found they could not have children. In
First, before considering why, when, and how, you need to the meantime, Robert’s son, Damien, struggled from early
understand that a will does say who gets your stuff when you childhood. Damien’s mother, for reasons of her own, made
die, but only the stuff actually in your probate estate. Basically, sure that Robert had no role in the child’s life, even though
your probate estate contains everything you own when you die Robert dutifully paid child support. Moreover, Damien nursed
that does not automatically go to someone else upon your death. a seething resentment against Robert. In addition, Damien
So, certificates of deposit with a named beneficiary, investment struggled with sobriety, logged numerous run-ins with the
accounts that transfer to someone else upon your death, joint bank local constabulary, and developed a penchant for street corner
accounts with a survivor, all of these generally pass automatically orations extolling the virtues of atheism and reviewing the
and are NOT part of your probate estate. Life insurance insuring many failings of organized religion. Naturally flamboyant, he
your death and paid to someone other than your estate goes to garnered a fair amount of local press coverage.
THAT someone even if your carefully written will says that the
proceeds go to ANOTHER someone. For example, even if your Robert died suddenly intestate, that is without a will, and Carol
will says that Marty gets your CD when you die, if you named discovered that she had a new business partner, an equal partner
Mary as beneficiary on the CD, Mary gets it and not Marty; that who also now owned half of her car, house, furniture, clothes,
CD is NOT in your probate estate. and savings – an angry young man named Damien.

So why have a will? A will tells everyone that matters how Although the story of Robert, Carol, and Damien presents
you want your probate estate distributed when you die. More an extreme set of circumstances, you need to know that if
than that, the will provides a format for distributing your stuff your husband (or wife) dies intestate and has children from
in a legally enforceable manner. Keeping all your cash in your a another relationship (including those from an extramarital
mattress and relying on Ed’s personal promise to pass it out affair), his children and only his children receive his share of

44 Lubbock Senior Link