Wills & Estates – Fact vs. Fiction

There are several ‘myths’ and misinformation that surround wills and estates. Perhaps because it is not a popular conversation topic or perhaps due to incorrect information passed along by others. We ‘debunk’ several common will myths:

If I have a will, my estate avoids probate.

Unfortunately, this is not true, in fact, part of the process of probate is validating the will of a deceased. There are other estate planning tools that do allow certain types of property to avoid probate, such as using a living trust, but you will still need a will to name an Executor for your estate and a Guardian for minor children.

If you do not have a will, the State takes your estate.

If you do not have a will, which is known as dying intestate, the state laws of intestacy determine who inherits your estate based on their relationship to you. The Colorado law governing intestate distribution is written to reflect what most people would put in a will if they had actually written one. The distribution is a matrix of who is entitled to the property based on how closely they are related to you, however, if no living relatives can be identified or located, the estate may ‘escheat’ to the state.

Wills begin with “I, __________, being of sound mind and body”.

This phrase is often used for theatrics, and is not normally the actual first line of will. In fact, the first line or phrase of a valid will is known as the exordium clause which identifies the maker of the will, declares that the document is meant to be a will and declares the testator of the will intends to revoke prior wills.

To disinherit a child, leave him or her just $1 in your will.

It used to be thought that by leaving a pittance to a child within a will you would prove that the parent did not unintentionally overlook the child’s inheritance while preparing the will. In a modern will, a provision would be drafted within a will acknowledging the existence of the child and stating that you intentionally are not providing for the child in the will. This provision can only be used for adult children, as many states have laws in place that do not allow minor children to be entirely disinherited.