What Your Attorney May Recommend

Why Some Attorneys Recommend a Will

Many attorneys recommend their clients create a will without a living trust, which ensures the estate will go through probate. Why? Because attorneys do not always have their clients’ best interest in mind. The attorney wants to collect the legal fees associated with probate, and, in some states, the attorney receives a percentage of all the assets that go through probate. Probate is time consuming, costly, and public. The only person that benefits from your estate going through probate is the attorney.

Problems with Using Joint Ownership to Transfer Assets at Death

You can avoid probate by holding assets in joint ownership, but there are several problems with this approach. For example, a couple had built a farm worth several million dollars. They were told by an estate planner to own the farm in joint ownership with their four children to avoid probate. A few years later the parents and one of the children were killed in a car accident. As a result of joint ownership, the farm did avoid probate with the three surviving children as joint owners. Since the assets went to the surviving joint owners, the spouse and children of the child that died were totally disinherited and they received nothing. In addition, whichever of the surviving three children who outlives the other two children will end up with 100% ownership in the farm; and the descendants of the other three children will be excluded. Even if there is a will which designates who is to receive the property, in almost every instance, property held in joint ownership goes to the surviving joint owner(s).

The following is another scenario that shows the dangers of joint ownership and using a will as your estate plan. A couple, Ed and Mary, had three children when Mary died. Ed eventually remarried and had a fourth child, Tom, with his second wife. Ed had a will that specified his wishes for his estate to go equally to his four children. However, all of Ed’s assets were owned in joint ownership with his second wife, so all the assets went to her on his death. Upon Ed’s death, the second wife, as the joint owner, became the sole owner of the complete estate and instituted a plan to have all the assets go to her only child (Tom) on her death, completely excluding Ed’s other three children. Ed’s wishes in his will for his assets to go equally to all four of his children went tragically unfulfilled.

Next Topic: "Revocable Living Trust"