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5 Common Myths About Wills and Probate

the importance of having a will

Most of us don’t know a lot about the law of wills, trusts, or probate–after all, they’re topics none of us really want to deal with. But we should all know the basics, and we should know enough to recognize common myths when we run across them. Here are a few misconceptions that keep coming around.


  1. If someone dies without a will, the state gets everything.There are lots of reasons to write a will, but worrying about the state snatching your family’s inheritance is not one of them. If you die without a valid will (the legal term for this is dying “intestate”), then state law kicks in. Every state has its own rules for who inherits what.Generally, your spouse and children are first in line to inherit. The rules vary from state to state, however; in some states, a surviving spouse and minor children share the deceased parent’s assets. (And there’s a good reason to write a will: you don’t want your eight-year-old to inherit a quarter of your bank accounts, do you?)So do assets ever go to the state? Yes, but only when no relatives can be found. As long as your personal representative (the person in charge of wrapping up your estate) can turn up your uncle’s long-lost grandchild, the state won’t get your money. The term for this is called “escheat,” and there’s a reason you’ve probably never heard that word—escheat is very rare.Tip: Write your will! Even if the state won’t get your money, you still want to decide who does—so don’t leave that decision up to state law. Making a will is easy and it doesn’t cost a lot.
  2. It takes years to probate an estate.Most estates don’t take years and years to resolve. Usually, the only delay is the period, mandated by state law, that gives creditors time to file claims. The length of the creditors’ claim window varies from state to state; it usually starts when notice of the probate proceeding is published in the local paper and runs from three or four months on the short end to a year on the long end.After that waiting period is over, the estate can be closed as soon as the personal representative has gathered all the assets and paid debts and taxes. (In states with estate or inheritance tax, the estate may need to get a tax clearance letter from the state department of revenue.) As a practical matter, it usually takes a few more months to get everything in order. But most estates are finished within a year.What makes some probate cases drag on for years, then? There are three main causes: family fights,  a very large estate and ongoing income.
  3. The cost of probate will eat up all of the estate assets.There are a lot of scary stories out there about how much probate costs. If you believe the worst of them, you might think that your family won’t get a thing once the lawyer fees and court costs are paid. Fortunately, that’s just not true.First of all, many estates don’t even require probate proceedings. Generally, only assets owned in the deceased person’s name alone must go through probate. And if the value of those “probate assets” is small enough, the family can take advantage of probate shortcuts, which are less expensive than regular probate.But even if the estate requires formal probate, costs likely to be less than 5% of the value of the estate. In most states, it costs several hundred dollars to file a probate case, a few hundred more to publish required legal notices, and a couple of thousand dollars to hire an attorney to handle everything. Throw in a few hundred more for miscellaneous costs like appraisals and certified copies of court documents.There are exceptions, however.
  4. I don’t have to leave anything to my spouse.Some couples decide not to leave each other a significant amount of assets.Especially if each one owns some assets independently, they may agree that each will leave most assets to his or her children from a previous marriage, or to a charity. Many couples in second marriages, especially if they married later in life, are primarily concerned with providing for children from a previous relationship.This can work just fine, as long as when the first spouse dies, the survivor is still happy with that arrangement. But if circumstances have changed, or the survivor simply changes his or her mind, trouble can arise. That’s because state law gives surviving spouses the right to refuse to take the assets left in the deceased spouse’s will, and instead choose to take what most states call the “elective share” of the estate. This is often called “taking against the will.”State law may give the survivor one-third of the estate, or a year’s support, or the right to live in the family home—it varies widely from state to state. In some states, the longer the couple were married, the bigger the share the survivor can claim.Tip: If you and your spouse don’t want to leave property to each other in your wills, go to a lawyer and discuss your plans. You’ll want to sign waivers, giving up your right to take against the will.
  5. As the oldest child, I am entitled to be the executor of my parent’s estate.Just because you were always the responsible one—or just bigger and able to push your little siblings around—doesn’t carry any weight when it comes to serving as the executor (personal representative) of a deceased parent’s estate.If the deceased person named an executor in his or her will, the court will appoint that person unless there’s a very good reason not to. (Reasons include a felony conviction or a disability that makes it impossible to do the job.) If there isn’t a will, or the person named as executor in the will cannot or does not want to serve, then the court will appoint someone. But sibling order isn’t a factor courts take into account. Instead, the court looks to state law, which sets out a priority list for who the court should appoint. In most states, the surviving spouse (or registered domestic partner or civil union partner, in states with those options) is first in line. Then come adult children.If more than one child wants to be executor, they can agree to act as co-executors, but that’s often a situation that can lead to family friction. It’s often better if siblings agree that one of them will serve as personal representative and will keep the others well informed about the probate court proceeding.Tip: If you think you should be the executor, talk to your parents about naming you in their wills. Or if you’re a parent making your will, name the child you think is most responsible and conscientious; don’t name all your kids unless you truly think it’s best for all of them to serve as co-executor.


If you need legal advice in managing an estate, trust or other elder law issue, the Law Office of Scott C. Painter can help. We specialize in elder law issues ranging from nursing home planning, guardianship, wills, trusts, estates, veteran’s benefits, and other related legal matters. Attorney Scott Painter is CELA® certified under the National Elder Law Foundation (NELF).

A call to us is free, and the best advice is to act now to educate yourself about your options. Waiting to seek legal counsel may limit your options and be costly. Call now for your free consultation 610-378-5140 or visit for more information.