Does a will avoid probate?January 30, 2017
I get this question all the time. “Does a will avoid probate?” Absolutely not! Your will is actually a road map through probate. If you have an asset that goes through probate, your will controls the distribution of that asset. Conversely, any assets that avoid probate are NOT controlled by your will. Believing that wills avoid probate or control the distribution of non-probate assets are very common misconceptions.
These misconceptions can lead to a couple unintended consequences:
1. You’ve got a will so you think you don’t need to do anything else to avoid probate. As I mentioned above, your will does not avoid probate. If you have assets in your name alone with no beneficiary named, those assets will go through probate regardless of whether you have a will.
2. You think your will controls the distribution of your entire estate. This is incredibly common and for good reason. It’s not crazy to think that if your will says 10% of your estate goes to charity and the rest goes to your children 50-50, that everything you have will be distributed that way. However, that’s NOT true! Only assets that go through probate will be distributed in that way. If, for example, you’ve named your children as the beneficiaries of all your assets and nothing goes through probate, the charity you’ve named in your will gets absolutely nothing. This usually comes as a pretty big surprise to people.
All the above said, you still need to have a will. However, if avoiding probate is important to you, make sure to meet with an estate planning lawyer to discuss what additional steps you need to take.