Mom Had a Will—So We Don’t Need to Go Through Probate, Right?
Something the Carlson & Blakeman estate and probate attorneys hear often from prospective clients is that since their loved one had a Will, probate is not needed. This is not correct and likely stems from a misunderstanding of what a Will does.
A Will is a legal instrument, ideally prepared by an attorney, that designates: (1) who should serve as the personal representative of your estate; (2) how that person should administer your estate; and (3) the beneficiaries of your estate. A Will does not give that named personal representative the power to administer your estate; instead that authority comes from the probate court. The Will must be delivered to the probate court in the county where the deceased resided, so the judge can appoint a personal representative. Once that personal representative has been appointed, they must then carry out your wishes stated in the Will. Thus, having a Will alone does not avoid probate, but rather it can make the probate process simpler.
If you want to avoid probate, there are a few common strategies. The first is by using a Trust. Trusts can be administered without probate. The second way is by beneficiary designating assets. By using a beneficiary, you can inform your bank or other financial institution that upon your death, you want that account paid directly to your named beneficiary. The financial institution is contractually bound to pay that money to the named beneficiary. Trust assets and beneficiary-designated assets are still subject to Nebraska inheritance tax, but they can pass to beneficiaries directly without the need for probate.
If you have a loved one who has passed away with or without a Will, Carlson & Blakeman’s estate and probate attorneys can help guide your family through the process of administering their estate. Or, if you want to avoid probate and streamline the process, our attorneys are available to discuss setting up an estate plan that meets your wishes and makes the process as simple as possible for your loved ones after you’re gone.
Give us a call today at 402-858-0996.