There’s a common misconception that making a Will can help you avoid the probate process. While having a Will can make the probate process smoother, it won’t do anything to avoid probate.
Making the Probate Process Easier
The purpose of a Will is to allow you to leave instructions for how any property individually owned by you at the time of your death is to be distributed. And the process for distributing this type of property is the probate process.
During the probate process, your Will is filed with the appropriate court and proven to be valid. Then, the personal representative you nominated in your Will is officially appointed to represent your estate (assuming he or she qualifies). He or she follows the instructions in your Will, along with state law, in paying your final debts, paying any necessary taxes, and distributing your remaining property to the beneficiaries named in your Will.
Without a Will, your property still has to go through probate, but it can be a much more difficult situation. The court has to appoint a personal representative to act on behalf of your estate, and this can invite conflict among your family members. Once the personal representative has been appointed, he or she is in charge of paying your final debts and taxes, and following state law to determine who should inherit your property. Depending on the complexity of your family situation, this may not be a simple process.
Whether or not you have a Will, though, probate can be time consuming and expensive, depleting your estate and tying up your property so that your loved ones can’t access it.
Fortunately, there are a number of ways to avoid probate. These include establishing a Revocable Living Trust, using payable on death accounts, and making use of joint ownership of property, among other methods.
The best way to determine what estate plan will work best for you and your family is to meet with a qualified estate planning attorney.