What are the disadvantages of a will?
The first estate planning tool that most people think of is a last will and testament. However, there are a number of disadvantages to using a will as your primary estate planning method. In this article, we discuss some of those disadvantages.
Three Main Disadvantages of a Will
There are three main disadvantages to using a last will and testament as your primary estate planning tool:
A will must go through the probate process;
After death, your will becomes a public document;
A will only takes effect after death.
This post explores each of these disadvantages. However, it is important to note that you need a last will and testament. The question is not whether to create a will; rather, the question is whether a will should be the primary tool you use to transfer your assets after death. After all, you could also do this through a living trust. But even with a living trust, you would still need to execute a pour-over will.
A will must go through the probate process.
Anything that passes according to the terms of your will has to be probated. That means that it has to be handled in the probate court, with a judge directing the process. This can be both inconvenient and expensive. It is inconvenient because it takes time, and your loved ones will have to wait for a court before your assets are distributed to them. And it can get expensive if you have a high-dollar estate. Because of this, most estate planners will tell you to avoid the probate process when you can.
After death, your will becomes a public document.
Because a will must be probated, it is part of the public record. The probate process is a public process, and after you die, your will is a court document that can be viewed by anyone. Thus, if you are a private person, you might want to do the bulk of your estate planning using tools that preserve your privacy, like a trust.
A will only takes effect after death.
A common misconception about wills is that they have some legal significance before death. They do not. Your will does not bind you or anyone else before you die, and this is a potential disadvantage of the document. If you are incapacitated, that will is not going to help you. Despite naming a personal representative to help you after you die, you still will have no one to take care of your finances during your incapacity. Because of this, your estate plan should almost always include other documents. You should at least create a Designation of Health Care Surrogate and potentially a Durable Power of Attorney in addition to your will.
Does this mean I should not make a will?
You should have a will. Even if you use other estate planning techniques to avoid probate, you’ll want to have a will to take care of the small estate left over. Your will also allows you to designate a guardian for your minor children, which matters a lot for parents. Thus, you should have a will no matter what. The disadvantages discussed above simply point to the occasional need to have other documents in your estate plan as well.