Where there’s a will, there’s a wait

Submitted on behalf of elder law attorney Robert E. Romano

Many people believe that if they have a will, their heirs will not have to go through probate. Actually, the opposite is true. Probate is the legal process of proving that your will is valid. Probate generally involves both attorney fees and court fees.

People also believe that if they have a will, the distribution of their assets will proceed smoothly. This can be true, with the process taking as little as six months if all goes well. However, if there any problems, it can drag on for years. It just takes one disgruntled heir to contest a will. Then, all bets are off. Besides the time delay, the added costs can add up quickly. Nobody wants their money unnecessarily going to attorney fees instead of their loved ones.

If you created a will 20 years ago, you really should review it. A 20-year-old will might not represent your thoughts today. You need to make sure your will is tailored to meet all of your current needs and wishes.

Here’s an example. Rose, 78 and a widower, lived in a nice house down on the Cape. She paid off the mortgage years ago and lived on Social Security, a pension from the telephone company and an annuity.

Rose had a will that left everything to her three children equally – all “great” kids who got along. Billy lived in Maryland, Linda in Chicago, and Bobby in Quincy.

When Rose passed away, Billy and Linda wanted to sell the house. They had kids in college and the money could help with tuition. But Bobby said, “No way!” He had spent vacations and weekends with his kids visiting Mom at her Cape house. According to Bobby, Mom said the house would always go to him. He was the only one who enjoyed the house as much as she did.

Can you imagine the problems and legal bills that could ensue? Did Rose really want her children fighting over a piece of property?

Unfortunately, this type of scenario happens all the time. Mom had good intentions, but her 20-year-old will did not have everything spelled out. Rose could have had a trust, either a revocable or an irrevocable trust, to avoid probate. The trust also would have stated exactly what she wanted done in great detail.

For instance, she could have said the house goes to her three children equally, but Bobby has the right of first refusal to purchase the house. As an alternative, she could have stated Bobby will get the house and the remaining assets would be divided between Billy and Linda, or whatever other wishes she decided on. Rose also could have decided these things ahead of time and shared her wishes with her children. Although Rose could have included these wishes in her will, just having a will would still require the children to go through the probate process.

Make sure you have the estate planning documents you need so your wishes will be carried out without any problems, unnecessary costs or delay. If you want to learn more, elder law attorney Robert E. Romano will be conducting a free “Estate Planning Essentials” workshop at the Canton Public Library on Thursday, June 23, from 10 a.m. to 12 p.m. To reserve a seat, please call his office at 617-769-9843.

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