"Does a will avoid probate?" being researched by a client.

Does creating a will avoid probate?

Have you been thinking of the future and wondering how best to take care of your family?

Or perhaps you’re in charge of estate planning, and you are wondering how to make the process as smooth as possible?

You may think that creating a will means you can avoid probate – unfortunately, that is not the case. Why? A will doesn’t allow you to avoid probate because the purpose of a will is to clarify and direct asset distribution, and probate is the process through which the court legally oversees this.  The will must first be “proved” in court, and any heirs-at-law (those who would inherit if there were no will) must be notified.

The probate process can be costly and emotionally draining, so many seek to avoid it. But there are some ways that you can set up your estate planning and beneficiary process to skip the lengthy probate process all together.  

See: 6 Steps to avoid probate


Your estate, your will and probate

Probate refers to the process that the court must go through to legally approve the transfer of a deceased’s person’s assets. This can include managing debts, paying taxes, and distributing assets to beneficiaries — either with or without a will.

Certain types of assets don’t have to pass through probate, so an estate with only those types of assets wouldn’t have to go through the full probate process. Here are some examples of the types of assets which could allow you to avoid probate.

See: What assets go through probate


Living Trusts

In most cases, a living trust will allow you to avoid probate. The difference between a living trust and a will is that a will allows your assets to be distributed post-death. But a living trust puts your estate into the hands of a third party (such as a law firm or bank), who holds the legal title to property for the beneficiary. Don’t worry: you still have total control over the property while you’re alive.

Because all of your assets are already distributed and legally held by a trustee, the assets do not have to go through the probate process.


Joint Property

If you own property that is split with others, typically 50%, then the property is automatically transferred to the other owner should one owner die. A common example of this is a home owned jointly by a married couple.


Small Estates

Some estates may have probate assets but won’t need to go through the probate process because the total value of the estate is too low to trigger the probate requirement. This threshold varies (drastically) from state-to-state. If the value is small enough, you may just need to sign an affidavit, or even undergo a simpler probate process and skip the costly, expensive version.

See: When is probate not necessary?


Will you require probate?

Simply creating a will does not mean you avoid probate. However, there are ways to avoid it, a few of which are listed above. If you can’t avoid probate, you can certainly make the probate process smoother and easier.

If you are looking for more information on how to avoid probate, or how to go through the process without an attorney, schedule a consultation with our expert team and we can help you decide on the estate plan that best addresses your needs at the most affordable price.