Discussing estate planning and probate with your family is not only awkward, it can create stress even though you are simply preparing them for the future. Of course, they should be prepared with basic knowledge in order to take up management of your estate once you pass. You may or may not wish for your family to be involved in the process, but if that is your plan, be sure to discuss these three family-related probate myths with your estate planner.


Family Participation in Probate

  1. The state will seize all your assets if you do not leave a will.

    State rules regarding wills and inheritance vary from state to state, but you don’t generally need to worry about the state seizing all of your assets if you have not left a will. After going through the probate process, your surviving spouse and children are usually going to be given inheritance first.


Assets are given over to the estate only if the court cannot locate your relatives. If you have no relatives, then the state will end up with your money and items. This is why writing a will or creating a trust is important. You may wish to leave some things to nonfamily members or you may wish to designate certain assets for certain family members. For example, you may want your second daughter to receive her great grandmother’s ring. If you do not list that, then there could be fighting among the family about your intentions.

2. I will not have to leave my spouse with any assets.

This is not typical. Some couples will choose to leave a small amount or nothing for their spouses, in second marriages the estate assets are likely to go towards care of children from the previous marriage. This can be alright if both spouses agree to it, however, it could cause trouble should the surviving spouse change their mind. Some states give the surviving spouse the option to refuse the assets left to them and alternatively take an “elective share” of the estate. Some states allow the spouse to take a third of the estate or remain living in the family home even if they did not own it. It depends on the state and how long the couple was together.

  1. The oldest child automatically becomes the executor.

    Your status as “first” does not come into play when the court is choosing an executor for your parent’s estate. If the will appoints an executor already, the court will approve them unless there is some circumstance preventing that possibility. If this happens, or if there is no will, the court will appoint someone themselves. Most states will choose the surviving spouse or partner first as the executor of the estate, if they are suitable. Then any adult children will be chosen from, however the order in which they were born will not be too important of a factor.


If multiple siblings have the desire to act as an executor, then they may act together as co-executors. That may not be a great option because it could lead to family disputes, particularly over their own inheritances. It is best to have one executor and ideal if the family members can agree on one together,

Estate Planning and You


In a grief-stricken time, your family may not be able to make decisions about your estate without some guidance. It is best to leave your loved ones with a comprehensive will in order to help them sort out all of your assets and wishes. It may be difficult to discuss this within the family without your input and may cause fighting. If you are concerned about leaving inheritances and instructions, call an estate planning lawyer or probate attorney from Legal Sweeney today to plan for your future.