Hyden, Miron & Foster, PLLC Law Blog

Tuesday, February 5, 2019

The Drawbacks of Using a Will Alone

Will my estate go through probate if I have a Last Will and Testament?

Wills and estate planning have become nearly synonymous. When most of us hear the term estate planning, our minds jump to creating a will, and wills do serve an important purpose when it comes to estate planning. The Last Will and Testament is one of the oldest estate planning tools.  With a will, you can name who you want to receive your assets upon your death. Absent this crucial document, your assets will simply be divided in accordance with state law.  You will be left with no say in the matter. However, using just a will, as many people do, comes with some drawbacks.  Our Little Rock, Arkansas estate planning lawyers discuss the limitations of wills below and other estate planning tools you may wish to consider.

Wills Require Probate

One of the greatest drawbacks of using solely a will to distribute your assets is that your estate will still need to go through probate. Per Arkansas state law, a will must be proven valid by going through probate.  Upon your death, your will must be deposited with the court and probate will be initiated.  The probate process can be time consuming and costly.  It will require court and attorney’s fees and may lead to additional taxation.  Probate can at times also lead to additional litigation when a family member contests the will.


A living trust, on the other hand, can distribute your assets without the need for probate.  When you create a trust, you will fund it with your assets.  Then, the language of the trust will determine who receives the assets at what time.  A trust allows for seamless transfer and can save you greatly in both time and costs associated with probate.


Wills Create a Public Record 

Additionally, by requiring the use of probate, a will further creates a public record.  Many people do not wish for their assets and affairs to be made open to the public.  With a trust, your estate remains completely private.  The trust is a private document that will not become a matter of public record.
Trusts come with other benefits, including disability protections.  With a trust, you can designate an individual who will manage your affairs should you become incapacitated. You can also set out a list of criteria to determine whether you are incapacitated.  Contact our estate planning lawyers for more information about the pros and cons of wills and trusts today.


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