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Why Not Writing a Will Makes Probate More Difficult


If you have been working with a financial planner, or even if you have just been researching their websites as an early stage of your New Year’s resolution to start working with one, you have probably found a lot of information about how to keep certain assets from becoming part of your estate.  Financial planners and personal finance websites encourage you to set up living trusts and give the biggest tax-free cash gifts the IRS will allow.  These actions can save your heirs a considerable amount of money on taxes, but the truth is that if you have only gotten as far as writing a will, you have already saved your family a lot of stress, because you have stated in writing what you own and who should receive it.  When someone dies without a will, the court already has a plan for passing the decedent’s property on to the decedent’s family members (by following the laws of intestate succession), but figuring out what the person owned is more complicated.  If you need help writing a will, even if it is too soon to think about all the other details of estate planning, contact an Orlando estate planning lawyer.

Determining the Value of an Estate

In your will, you list all of the assets that will become part of your estate; this transparency makes probate easier.  The court has to know how much property someone owns before making or approving a decision about how to divide it fairly.  (Consider that, when a couple divorces, they must list and estimate the value of all their marital and separate property.)  It is possible that you also have non-probate assets, such as trusts and transfer-on-death bank accounts, but the beneficiaries will find out the value of these when they inherit them.

During probate, the personal representative of the estate must make a sincere effort to locate the decedent’s assets and determine the value of the estate.  Even if the personal representative does their best, it still takes a long time if the personal representative has to start from scratch because there is no will to work with.  This means that the heirs will have to wait longer to get their inheritance.

You may have read in the news that Prince’s estate is still in probate nearly five years after his death.  Prince died intestate in 2016; he was divorced and had no surviving children, so his siblings will inherit his assets when the estate settles.  Meanwhile, disputes over the value of the estate continue.  The IRS announced this week that the estate is worth twice as much as the $80 million that the personal representative valued it.  The IRS charged a $6.4 million “accuracy-related penalty,” which means that the amount that Prince’s siblings will inherit will be that much less, even though they were not the ones who made the error in valuing the estate.  The personal representative of the estate is Comerica Bank & Trust.

Let Us Help You Today

Writing a will is only the first step in estate planning, but it is a very important step, and an Orlando estate planning lawyer can help.  Contact Gierach and Gierach, P.A. for a consultation on your case.





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