Let’s face it; few things are viewed as more sacred in popular culture than a person’s will. Hollywood loves the neat simplicity of the storyline that says the wording of the will controls who wins and who withers in time for the curtain call. It’s fun fiction.
A Last Will and Testament is an important document, but it’s usually the last resort rather than the final word. A Will is set of instructions to the probate court judge. It has no authority outside of the courtroom. Thus, in order for a will to control who inherits an asset, that asset must first fall under the authority of the judge.
A probate court only has authority over assets that do not already have a designated owner. This fundamental misunderstanding can lead to bitterness amongst descendants. A few years ago a man passed away and his five sons brought his Will to my office. I did not know either the decedent or his sons but I was happy to peek at the bequest. The will was as straightforward as it gets, “I leave everything to my five sons in equal shares.” I then asked what assets the man had left behind; the sons replied that the only asset remaining was a single bank account containing one million dollars. The next question changed the game. “Who are the owners on the account?” I asked; “Dad and Dorkins (not his real name) came the reply. I then correctly responded that because the bank account was a joint account the will didn’t matter at all and therefore Dorkins was the sole owner of the million dollar account. I then started to say that Dorkins was welcome to share the money with his siblings if he so chose, but Dorkins did not leave me enough time. Dorkins was peeling out in, what I assumed was a soon to be replaced, Geo Metro in 5 seconds flat; impressive because if memory serves he was a kind of a hefty fella. The other four brothers lurched after the newly minted millionaire in a surly mix of stupor and anger, leaving the useless will behind on my desk.
Although somewhat altered to protect client privilege, this story illustrates the truth that a will only covers assets without an automatic successor. Thus, joint ownership of home, a bank account or a beneficiary designation on life insurance, retirement assets, or stock accounts all trump the will in a head to head contest. This is just another reason it is useful to talk things through with a competent lawyer before Dorkins speeds off with the money.
Takeaway: A will is important, but it is generally just a part of a balanced estate plan.
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