Estate Planning Basics
 | Author:
Peter Simon, Esq. Gallatin Elder Law & Estate Planning, PLLC
Attorney At Law |
Estate Planning Basics
Peter Simon, Esq. Gallatin Elder Law & Estate Planning, PLLC
Chapter 1: “I Need a Will”
I know and have worked with many of you already, but for those who don’t know me, I am the only private practice attorney in Townsend currently, as well as the contracted City Attorney for civil matters. My office is right next to the Mint, the building on the west end next to the gazebo. I have been practicing law out of that office for just over 6 years now, with a focus on providing quality estate planning and probate services for the average Montanan at a reasonable rate with a quick turnaround.
This article is the first in a series that will discuss some of the common questions, issues, and topics that come up regularly in my main practice areas. I’ll start with one of the more common phrases that potential customers say when they leave a voicemail or we speak for the first time: “I need a will.” The client who utters this phrase often believes that completing a will is the first and last step needed for an estate plan. To be sure, having a properly executed, witnessed, and notarized will – one which sets forth your intent for distribution of your property after you die and numerous other common post-death decisions – is certainly better than doing nothing. However, many of these clients don’t realize that a will is the most basic estate planning tool available, and its use without other documents and mechanisms generally leads to the same outcome as doing nothing at all: probate.
When I ask these clients if they are familiar with probate, many of them shake their heads warily and appear to brace themselves for a sermon of legalese. But probate at its core is actually very simple to explain: it’s the judicial process to transfer the assets of a deceased person to the persons who are supposed to receive them. Who gets what though during a probate proceeding depends on the existence of a valid will. If a valid will does not exist or cannot be found, assets are distributed according to state law: basically, some or all to the surviving spouse, depending on the surviving children; or, if the deceased person was unmarried, to children or other relatives. If a valid will is found and submitted to the court, then its written instructions must be carried out by the person(s) authorized by law to do so. Many clients refer to this person using the more archaic term, executor, but Montana law defines this person as a “personal representative”. Regardless of the term, a personal representative may only legally administer the estate after an appointment by the local district court. In other words, whether you die without a will, or with a will but without putting other estate planning documents or mechanisms in place, most likely someone is going to have to file the appropriate paperwork with the court, follow Montana probate laws, and wind up your affairs over a minimum of 6 months up to a maximum of two years with few exceptions.
So yes, you do need a will, if: you intend your property to be distributed differently from the default state law scheme; you want to control who handles your estate; and/or you want to give many other common instructions such as guardianship of minors, what happens with your pets, etc. But a will, by itself, does not avoid probate; in fact, it only has legal power after submission to the correct court along with the appropriate paperwork. If your goal is to create an estate plan that transfers your property how you want, without involving the court, you will almost always need more than just a will.
In the next chapter, I will discuss the different types of probate proceedings, and how and when to avoid probate. If you have any questions or want to discuss representation for estate planning or probate, please contact me at 406.577.2292 or ptsimon.law@gmail.com. I meet by appointment only, as I am a solo practitioner with no administrative staff and am quite busy with existing clients and work.
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