Will Substitute Lawyers
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What is a Will Substitute? How is a it Different From an Actual Will?
A will substitute is a legal mechanism that allows a person to transfer their property to a beneficiary without undergoing the state probate process. This can happen through a variety of different means. Bypassing the probate process can often be beneficial for both the estate holder as well as the beneficiaries. Probate distributions can sometimes yield results that are not actually in line with the estate holder’s actual intentions.
Will substitutes are different from an actual, valid legal will in many respects. When transferring property to a beneficiary through a will, the asset distributions are usually made only after the death of the estate holder.
In contrast, with a will substitute, the title to the asset may be distributed to the beneficiary while the estate holder is still alive. While the asset itself may not be transferred, the legal title to it is transferred with a will substitute. This is not the case with a normal will, in which the title only transfers upon the estate holder’s death.
What are Some Types of Will Substitutes?
There are various types of will substitutes. A person can have a valid will in place before their death, but they may choose to use a will substitute for specific beneficiaries or property items that need to be dealt with separately.
Again, a will substitute can be thought of as a legal mechanism for avoiding probate. These can include:
- Rights of survivorship: Survivorship rights may often allow a person to gain title to the estate holder’s property. Survivorship is commonly granted through various ownership titles such as “joint tenancy with right of survivorship”, or “tenancy by the entirety”.
- Provisions in living trusts and other types of trusts
- Mentions made in a “Transfer on Death” or “Payable on Death (POD)” account
- Beneficiary designations- these can include various contracts that transfer property interests, such as life insurance contracts, retirement plans, and IRA’s in which you have named a beneficiary who will assume your payments upon your death.
Thus, through the will substitute transfer, the property is effectively transferred during the estate holder’s lifetime, and therefore will not pass through the probate process. There may be many other types of will substitutes, depending on state and local laws.
What are Some Advantages and Disadvantages of Will Substitutes?
Using a will substitute can have many advantages, such as:
- Reducing overall estate taxes (the title to the property is usually taken out of the estate listing)
- Saving time and other resources on the probate process
- Avoiding unequal distributions that are often the result of the hit-and-miss probate process
- Usually easier to amend than a will, and sometimes cheaper to execute
Some disadvantages of will substitutes include:
- May involve extra costs to set up (such as with living trusts) due to contract and trust fees
- May also involve certain costs to maintain
- If not set up or executed properly and with sufficient foresight it can have negative tax consequences on the estate holder.
Do I Need a Lawyer for Help With a Will Substitute?
Will substitutes can be helpful, and sometimes even necessary for maximizing the distribution of one’s estate. As you can tell, estate matters can often be complicated. Thus, you may wish to hire a qualified estates lawyer if you need help with the laws in your area. An experienced attorney help you consider which types of will substitutes may be helpful for you. Also, if you need representation in court, your lawyer can assist you with that as well.
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Last Modified: 03-28-2016 01:49 PM PDT
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