This article examines 5 common probate mistakes, misconceptions and myths.
Myth: If all of someone’s assets are in trust, survivorship, POD/TOD or have a beneficiary designation, there’s no need to go to the probate court when they pass away.
This is not a myth for Florida and New York residents. However, when someone dies owning any interest in Connecticut real property (even if they are a resident of another state), probate proceedings are still necessary in order to get clearance of Connecticut estate tax and probate fee liens on the real property.This is somewhat unique to Connecticut; neither New York nor Florida have such proceedings, which, in my opinion, has turned Connecticut Probate Courts into tax collectors. This is true even if none of the deceased person’s assets are probate assets. Probate assets are assets that were solely in the deceased person’s name at the time of death with no beneficiary, survivorship, TOD/POD designation, or trust.
This is a common source of confusion, and can sometimes result in problems when the real property in which the deceased person had an ownership interest needs to be sold and there is no release of lien from the probate court.
Myth: A living trust is a substitute for a will.
Living trusts are a will substitute only for assets that were transferred into the trust during the trust creator’s lifetime. In that regard, a trust is a will substitute. However, many – indeed, most – people with living trusts fail to transfer assets into their living trusts during their lifetime. In those cases, where an asset was solely in the decedent’s name, probate proceedings will be required to determine the legal owner of the asset.
In my years on the bench and practicing law, I’ve frequently seen family members come to the court with their deceased loved one’s living trust, only to find that the person who died never transferred anything into the living trust.
Mistake: Writing your own will.
Connecticut, Florida, and New York do not recognize handwritten wills that fail to satisfy the legal requirements of what the law recognizes as a potentially valid will.
I strongly recommend having an experienced estate planning attorney work with anyone who would like to have a will. Mistakes in “do it yourself” legal documents – including wills – can have disastrous consequences. I’ve seen more than my share of them as a probate judge.
When it comes to something as important as your wishes for your family and your assets, cutting corners by doing it yourself or using an online form or vendor is foolhardy. It will likely end up costing your family orders of magnitude more than might have been “saved” instead of using an experienced estate planning attorney.
Misconception: Without a will, all that I own will go to my spouse when I die.
This is usually not the case, particularly if you have children and/or surviving parents. Surviving spouses will only receive all of the deceased spouse’s assets if there are no children, grandchildren and parents of the deceased spouse.
Misconception: You need to include funeral and burial arrangements in your will.
A will is only effective after it has been admitted to the probate court. Even a will that is submitted to the probate court immediately after someone passes away will take several weeks to be admitted. It’s only after the will is admitted that it has any legal authority.
A better approach is to either make your final arrangements while you are still alive, or discuss your preferences with loved ones (spouse and children) so at least they will know what you want.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE, NOR SHOULD IT BE RELIED UPON AS LEGAL ADVICE. CONSULT A QUALIFIED ATTORNEY FOR ADVICE REGARDING YOUR SITUATION.
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Estate Planning & Probate 