Now here’s why you never want to have to use your will

You may be confused because I just said in my last post, “You need a will!” And I did mean that. But.

Yes, of course there’s a “but”.

Let’s use a different metaphor to make this point clear, because the gambling metaphor from that post won’t carry here.

Think of your estate plan like a battle plan. Not to say there will be warring relatives - your family truly may not have this problem. But even if we assume there is no issue among your heirs and beneficiaries about who gets what and what your last wishes are, they are not the only people your estate must contend with before the estate can close.

If you pass with any kind of debt your creditors will need to be dealt with. If you leave behind business partners or perhaps even real estate or other personal property that requires interaction with a third party - think property management companies for rental property or even simply the entities that hold your property like banks or brokerage firms - they all need to interact with your estate in some fashion. So while your nearest and dearest may play nice, these other parties may not.

This is why you need a good battle plan. And a good battle plan of estate planning starts with one foundational rule - that you never need to resort to using the will.

This seems counterintuitive. The Last Will and Testament is the first and most obvious estate planning document we think of when we think of planning our estate. Taking aside for the moment the parts of your battle plan that must address any period of time where you are incapacitated, you still don’t want to have to rely on the will. And you don’t have to.

In the vast majority of cases, your property can be entirely passed on without needing to use the will. How?

The primary way is using contracts. And the nice part is, most of these contracts exist already, you just need to make one simple adjustment. You have a life insurance policy? That’s a contract. By keeping your beneficiaries up to date and ensuring you designate alternate beneficiaries should something happen to your first choice, you have avoided the need to use your will to have that policy pay out to the person or entity you wanted to have it. No need to go to Probate Court, no need to delay.

You have bank accounts, right? Those are contracts, too. By assuring you have transfer on death designations on file with your banking institutions you assure speedy transition of your accounts to the person you choose. No Probate Court judge sign off needed.

Have a lot of real estate properties? If those properties are held in joint tenancy with right of survivorship (as is often the case with family homes married couples purchase together) those deeds automatically transfer on death to the joint tenant. Or, transfer on death designation affidavits can transfer properties that are not held in this manner.

So, you can direct all these same transfers in your will. That is true. But in order for those transfers to actually happen, your estate must be probated. This means it has to go before the Probate Court with jurisdiction and undergo a court-supervised process.

This is why, ideally, your estate battle plan should treat the will as the method of last resort - the last line of defense in assuring your wishes are carried out. It is important to have it in place. There’s no point going to war if the home front is left completely unprotected. All the other pieces of your estate plan should work together to create a barrier which assures no property, no questions are left for the will to handle.