Do Wills Avoid Probate?

We have talked with several clients recently who mistakenly believed that having a Will eliminates probate at the time of their deaths. Last Wills are particularly useful documents, but they do NOT avoid probate.

Probate is a process in which the local probate court supervises the transfer of probate assets when someone dies. Probate assets are individually owned assets with no beneficiary designation. For example, if I own a bank account in my name alone, that asset is subject to probate at my death. My wife needs to go through probate to get that account.

Last Wills tell the probate court who is supposed to get those individually owned assets. If one dies without a Will, then we look at the State statues to figure out who should get those assets. These statutes are called the intestacy statutes. Think of them as the State’s free Last Will for people who did not have a Will.

In either case, if an account owner has died, no one has legal authority to access that account. This is where probate comes in. The court will appoint a personal representative (or executor) to have authority to access an account and retitle it either pursuant to a Will or the law of intestacy.

How do you avoid probate? You can do this by owning assets jointly with another person or naming a beneficiary on an account.  You could also use a Revocable Trust.

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Joshua Keleske