Why a Will Isn’t Always Enough to Protect Your Real Estate

A will is a foundational estate planning document, but it is often misunderstood. While a will determines who inherits your real estate, it does not control how or when that transfer occurs, and it offers limited protection against delay, expense, and public exposure.

That said, a will is not always the wrong tool. In some situations, it may be sufficient.

Understanding the difference helps you choose the right level of planning.

Key Takeaways

• Property transferred by will must go through probate
• Probate is public and can involve delay and cost
• A will does not prevent creditor claims
• Property in multiple states may require multiple probates
• A will offers no protection during incapacity
• · For small or simple estates, a will may be enough

What a Will Cannot Do

A will only takes effect after death and must be administered through probate. Probate confirms the will, appoints a personal representative, and provides a window for creditors to file claims. For real estate, this process often creates practical challenges.

Delays

Probate commonly takes six to twelve months and sometimes longer. During this time, real estate may be difficult or impossible to sell or refinance without court approval.

Costs

Court fees, legal fees, and administrative expenses can significantly reduce an estate’s value, particularly when real property is involved.

Lack of Privacy

Probate filings are public records. Details about your property and beneficiaries become accessible to anyone who looks.

Ongoing Property Obligations

Mortgage payments, insurance, taxes, and maintenance continue after death, even while access to estate funds may be limited.

Real Estate Issues a Will Does Not Solve

Property in Multiple States

Owning real estate in more than one state often requires separate probate proceedings in each jurisdiction. A will alone does not prevent this outcome.

Incapacity During Life

A will provides no authority if you become incapacitated. Without additional planning, a court-appointed guardianship may be required to manage or sell property.

When a Will May Be Enough

For some estates, a will can be sufficient.

A will is often appropriate when:

• The estate is small and uncomplicated
• There is a single piece of real estate
• All heirs agree and are cooperative
• There are no anticipated creditor or Medicaid concerns
• Privacy and speed are not major priorities

In these situations, the cost and complexity of additional planning outweigh the benefits. A straightforward probate can be an acceptable solution.

Better Tools for More Complex Situations

As complexity increases, additional planning tools become more valuable.

Revocable Living Trusts

A living trust allows you to retain control of your property during life, avoid probate at death, and provide continuity if you become incapacitated.

Transfer-on-Death and Enhanced Life Estate Deeds

Where permitted, these deeds allow property to pass directly to beneficiaries without probate, while preserving control during life.

Joint Ownership with Rights of Survivorship

This method allows automatic transfer but can expose property to co-owner creditors and create tax or control issues.

Life Estate Deeds

Traditional life estate deeds can work in limited circumstances, but often restrict future flexibility.

Tax Considerations

From a tax perspective, property inherited at death typically receives a step-up in basis, reducing capital gains exposure. Specific ownership structures can undermine this benefit if not carefully planned.

Choosing the Right Level of Planning

A will is essential, but it is not always sufficient. The right plan depends on the size of your estate, the type of property you own, your family dynamics, and your long-term goals.

Oram Law helps clients evaluate when a simple will is appropriate and when more advanced planning is warranted. If your estate includes real estate, we can help you choose the right strategy to protect your property and your family.