A fellow and his wife were in today for a new will. We talked a bit at first, so I could find the proper form. They told me that their estate was about a million dollars, including their Reno area home. They had about $10k in cash in the bank, and told me that their home was owned by the two of them as joint tenants. Their bank account was a joint tenant POD account, meaning that they had told the bank that on the death of the first spouse, the survivor would own the account and that on the death of the surviving spouse, their adult son would own the account. They mentioned that their largest asset was the husband’s 401k retirement account, which was owned jointly, and that they had told the account manager to pay their son on the death of the survivor of them. All but one of their cars was owned by the two of them, as joint tenants.
I explained to them that theirs was a fairly typical situation and that on the death of the first spouse, the other would own everything without need of probate. The exception to this was their car, which was owned by the husband alone. I explained that so long as the size of their probate estate was less than $100,000, their estate would not be probated but rather would be set aside to the survivor. They said that another attorney had told them that their estate would be probated unless their assets were owned by a living trust and I explained that the other attorney was just trying to sell them a living trust…that if their desire was to avoid probate, that no probate would be needed on the death of the first of them to die.
They were quite concerned about the possibility that both of them might die in a common accident or some such and I told them that in that remote eventuality, there would probably be need for probate. However, I wondered aloud whether the hassle and expense of a living trust would be justified just to avoid probate in the event of that remote possibility. Far better, I explained would be for the surviving spouse to come in and do up another will after the first spouse died. At that time, she could change or update the POD accounts, do up a “death deed” on the house, and still avoid probate. Despite all this, I told them that they should have a will. Everybody should have a will. You just never know what might end up being in your probate estate.