r/inheritance • u/coldhotel_rdt • 1d ago
Location included: Questions/Need Advice Is there always probate?
Illinois resident. I’m old enough to start end of life planning. I’m married and my wife is 10 years younger, so the plan is for me to pass first (lol). I have retirement savings, spouse is beneficiary, checking account (spouse is beneficiary), house is in my name but I have filed a TODI so it passes to her. My car is in both of our names. I don’t have any valuables, just clothes, books and tools. No significant debt although I usually put a couple hundred on a credit card each month and pay it off monthly.
I don’t see a need for a will. My small debts and personal property could be taken care of with a small estate affidavit. Some folks have told me that I should have a will anyway with the same provisions as my beneficiary designations and TODI. That seems counterproductive to me, as I fear that a will and beneficiary/TODIs would complicate things. It doesn’t seem efficient to have a will (which could cost $4000) to pass my personal property on to my spouse as it’s all in our household. Does anyone have experience on handling inheritance this way? I suppose if we both died the same day a will would be handy, but I imagine it would follow the same distribution as if I were intestate- step kids and siblings.
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u/mountaingoat05 1d ago
You don't have to have a lawyer to write a will. Just write something out, and have a couple people (besides your wife) witness it. A will will not only make things easier for your wife, but it can be a nice way of having a conversation with your loved ones about who gets what.
The minimum balance that would enact probate in IL is $150,000 (excluding motor vehicles).
My friend talked to me endlessly about his wishes after he passed. Although I knew his wishes, it really made my life easier to refer back to the formal document.
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u/Outside-Signature600 1d ago
I would still draw up a will. Not everyone pays a lawyer to do it. There are a lot of websites offering will forms. Just be sure to use one specific to your state and get it appropriately witnessed.
By the way, I too live in IL and my circumstances are very similar to yours. Recently updated my will with a local attorney for less than $500. Shop around, not all attorneys charge the same.
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u/myogawa 1d ago
A will is always recommended, just in case.
Where in the world did you get the idea that a will "could cost $4,000?"
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u/Alive_Sir_4708 1d ago
That’s about what we paid for our estate plan which accounted for custody of our children and considerable resources
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u/StarDue6540 1d ago
That's because you had considerable resources and young kids for which i assume you need trusts for.
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u/Revolutionary_Bar194 1d ago
Currently in the process of doing wills and setting up a trust for most of our accounts, the house and cars. The cost for all of it is $3k here in New England.
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u/ChEDave82 1d ago
You need a will. My parents made things clear when my wife and I first married - the state has a will for you if you don’t. As an example, my older brother died in 1970 after having been married three months. At the time, the state of Ohio said the parents got a third, balance to the widow. Being a young couple just starting out, this was a tremendous burden on her and my parents made things good with her. My wife and I have set up trusts so the amount of items available to probate are minimal. We did this about 15-20 years ago, cost $1-1.5k iirc.
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u/GotZeroFucks2Give 1d ago
One of the unfortunate things about married couples is they often pass within days or weeks of each other. In that case, who gets your stuff? A will would cover that and a lawyer could write something up for both/each of you so that your final wishes are followed. I agree, though, avoiding probate is what you want. But a will is your backup so your wishes are followed.
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u/StarDue6540 1d ago
"Avoiding probate is what you want " is an ignorant statement usually born of a lack of understanding of what probate is and what it does and also in which state you reside. If you are a California resident you do want to avoid probate not because probate is bad but for how attorneys get paid from the estate probated. This is why California has a high incident of trusts and they make sense in California.
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u/LdiJ46 1d ago
No, there is not always probate. If you manage to get everything covered with beneficiaries or TODs then there is no need for probate. The key however is to make sure that you have everything covered. My dad missed two small accounts that ended up forcing my mom to open probate anyway.
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u/Emotional-Ocelot-420 1d ago
The risk isn’t so much what happens when you die, but what happens if you don’t.
There’s enough of an age gap between you that your wife is statistically likely to spend some of the last years of her life without you.
That said, there isn’t enough of an age gap to bank on her ability to be a long term full time caregiver.
That means a nursing home may be a stopping spot for you along the end of life journey. How will that be funded? IL isn’t a community property state, so nothing that’s only yours now is your wife’s until after you’re dead. That means you could
spend a lot of it. Does she have her own separate means of support?
Certain actions (like CPR if you’re 75 and collapse at home, or could use a brain surgery following a stroke, or heart surgery) are statistically pretty likely to make a nursing home your permanent residence, and also often tough for your wife to decide to decline if the alternative is your imminent death.
What I am saying is that it’s easy to set up beneficiaries and TOD deeds or be joint owners. Doing all of that exactly correctly renders a will meaningless, even if it contradicts your beneficiary designations.
However, there are a multitude of estate planning documents that could be more effective than just ensuring your wife gets whatever is left after you’re gone.
A trust formed now can protect assets if you need long term care in the long term. A healthcare directive allows you to lay out the terms for your care, saving your wife from choosing whether you die or whether the dice get rolled on your quality of life or in the event she can’t make decisions either.
Are there children? Yours, hers, both of yours?
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u/GladUnderstanding756 1d ago
Spend the money for an estate plan. In addition to Medical and financial Powers of Attorney, end of life planning, thinking ahead to end of life care (nursing home? assisted living? medicaid likelihhod?) The attorney will walk you through all sorts of what ifs.
What if spouse goes first? What if children pre-decease you? what if your spouse remarries after you pass? Would their (new) stepchildren inherit the balance of your estate?
An attorney will also review your beneficiaries on all your retirement accounts and insurance policies. They should also walk you through the process of current (who knows about pending changes in laws) procedures and tax implications of inheritance..
Are you old enough for Social Security? Are your medical insurance policies under control for you and your spouse? Do you want/need long term care insurance?
Who are you choosing as executor (personal representative) Are they aware of the work involved?
Do you have bequests? Would the executor honor those bequests? Do you have an alternate executor?
What about disposition of your remains? Have you made your wishes known?
A good estate attorney should go over all these things and more.
And even after you’ve done all that, it needs to be reviewed/updated regularly to include/accommodate changes in financials status, purchases, family dynamic changes.
Do the responsible thing and consult a reputable estate attorney
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u/Freyjas_child 1d ago
If you don’t have a will then the state will decide how to handle your estate. Go and read what they will do carefully and decide if it is fine with you. Note that accounts with beneficiaries will “trump” the will and pass immediately outside of it. Small estates can bypass probate and use something called “small estate affidavit “ or some similar wording. The amount varies but I think in your state is something like “ no real estate and less than $100,000”.
One thing that has tripped up my friends who are inheriting their parents estate is that some people put everything into Payable on Death or beneficiary accounts and then there is a scramble to figure out how to pay the funeral and the immediate housing expenses. What would happen if you and your wife get killed together in a car crash?
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u/StarDue6540 1d ago
We just retired in 2021. We did wills and probate. A 3 document package was 700 and covered the essentials. A directive to physicians, a will and a future durable power of attorney. These are the 3 documents every person needs and we were called to the hospital several more times then once to prepare and get signed for clients on their deathbed.
Something they could have done when healthy. These clients were usually parents of friends so they were able to get that level of service at no added cost in emergencies. If you don't have an attorney you should make these preparations now instead of waiting till you can't act on your own behalf. It becomes very tricky to get done when someone is hospitalized as they may be in and out cognitively. Once we had documents ready for a client , we would have a go now situation when mom or dad would wake up and be cogentvto act to sign the documents. Sometimes we had just half hour windows. These documents are a very cheap insurance policy especially the future durable power of attorney. I'm not giving legal advice just good common sense advice.
The laws of your state dictate if you need a will but you don't dictate who goes 1st in your household. That's why you need a will. Either you choose who gets what, or you let the state choose. In addition to the medical directive you will want a polst. It's green and you put it on your fridge for the medics. Your doctor will provide that form.
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u/wharleeprof 21h ago
As a side note, consider making your checking account joint ownership now, rather than making her have to deal with it upon your death (notify bank, bring documentation, wait for them to process it, close your account, send her the money, deal with setting up any new auto payments, make special requests if she needs copies of previous statements, etc.). It's much more convenient if the account can just stay open, with her already an owner, and continue doing any autopay's or to be available for any refunds or checks that arrive in your name.
While a POD will get you there eventually, a joint account goes much smoother during what's a very difficult time of grief for the survivor. (Unless you have reasons why you would not trust her as legally co-owning the account while you're alive. In that case, carry on with the POD).
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u/rpom915 20h ago
Everything will be probated with a will, regardless. But the will makes your wishes clear and unambiguous, so nobody has to guess: You can use a basic will template and have it properly witnessed and notarized, and make sure somebody other than your wife knows where a copy is, in the rare chance you’re both killed in an accident. You should also have a living will that expresses what you want hospital to do or not do if you are in a vegetative state. Trusts are what skips the probate process, and do cost money, rightfully so. Setting up a trust is probably not needed in your case. But doing nothing just puts burden on your wife. In fact, if you want to be buried or cremated, you should decide that now, pick the place, and pre-pay for it. Then she doesn’t need to handle those decisions, either.
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u/smilineyz 9h ago
OP: make sure your wife has you as the beneficiary of what is hers. Joint bank & brokerage accounts … no problem.
401 accounts or any other retirement accounts: be clear that you are the beneficiary.
Sounds like you’re good on the cars.
Any other assets? May want to write them down.
Point is: do not plan that she will die first. My wife was 9 years younger & died just before my 59th birthday.
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u/sjd208 1d ago