As an estate planning lawyer, one of the most common misconceptions I hear from clients is that having a will means their loved ones can avoid probate. Unfortunately, this isn’t the case. Let’s dive into why wills and probate go hand in hand, and what this means for your estate planning.
Think of Your Will as a Letter to the Court
Imagine your will as a detailed letter to the probate court. While it clearly expresses your wishes, the court still needs to “open” this letter and officially validate its contents before your assets can be distributed. This is what we call the probate process.
Why Probate Still Happens With a Will
Even with a will in place, probate serves several crucial purposes:
- Validates that your will is genuine and it was created under proper circumstances
- Ensures all your debts and taxes are paid
- Provides a supervised process for transferring assets to beneficiaries
- Gives creditors a chance to make legitimate claims
- Creates a public record of asset transfers
Ways to Actually Avoid Probate
As an estate planning lawyer, I often recommend several strategies that can help assets bypass probate altogether if this is one of your goals:
Living Trusts
A living trust can hold your assets and transfer them directly to beneficiaries without court involvement.
Beneficiary Designations
Life insurance policies, retirement accounts, and transfer-on-death accounts can pass directly to named beneficiaries.
Joint Ownership
When you own property jointly with rights of survivorship, it automatically passes to the surviving owner without probate. However, this strategy should be used with caution.
Why You Still Need a Will
Even if you use other methods to avoid probate, having a will is crucial. A will ensures YOUR choices are followed, instead of the state’s default plan. Without a will, state law determines who inherits your assets through a one-size-fits-all approach. This will very likely not align with your wishes. A will puts you in control of these important decisions about your legacy.
For instance, in many states, if you’re married with children from a previous relationship, your new spouse could inherit everything. This also means that your children could be left with nothing. Through a will, you can override these default rules to ensure your assets go exactly where you want them to go. You can choose who inherits your property, name guardians for minor children, designate an executor you trust, and make your wishes clear rather than leaving these crucial decisions to state law.
The Bottom Line
While a will alone doesn’t avoid probate, it remains an essential part of your estate plan. Working with Sechler Law Firm, we can help you understand how having a full toolbox of ‘estate planning tools’ can be the solution you need.
Ready to create an estate plan that truly protects your loved ones? Register now for a Three Secrets Workshop at a venue convenient for you. Visit sechlerlawfirm.com/workshops.
