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Do I Need a Will to Go Through the Probate Process?

Do all Wills have to go through probate?
March 18, 2016
HomeBlogDo I Need a Will to Go Through the Probate Process?

Question: Do all Wills have to go through probate?

Answer: Probate is the process of presenting a Last Will and Testament to the Court for approval.  It is the process that appoints the Executor and allows the Executor to go forward with marshalling the assets and distributing them according to the terms of the Will.

Not all assets are subject to probate.  If a person dies with joint account holders or beneficiaries listed for all accounts, there is no reason to probate the Will.  Many people do not understand that their Will may end up having no effect on the outcome of their estate if all the assets have been titled in certain ways.  If you own a home and a checking account jointly with another person, have a retirement account that names a designated beneficiary, have a brokerage account that names a transfer on death beneficiary, and have life insurance with a named beneficiary, your Will does not have to go through probate. Note that listing a power of attorney on an account does not have the same result as naming a joint owner, that account will still be subject to probate.  A power of attorney is only valid while a person is living but is not in effect after death.

While probate is not always a terrible process to go through, some situations make the probate process take longer and cost more money which may be a reason to avoid it altogether if possible.  For example, if you do not have easily identifiable heirs, the Court can make your estate spend time and money looking for your next of kin because they must be given notice of the probate proceeding.  Or if you know the whereabouts of your next of kin but you are choosing to disinherit one or all of them, the notice given provides an opportunity for the disinherited and possibly disgruntled to come to Court and state objections to the Will.  Having a disabled beneficiary may be another reason to avoid probate as the Court will often appoint a Guardian Ad Litem to act on that person’s behalf in the proceeding.

Periodically, you should check that all of your accounts list up to date beneficiaries.  It is important to review your estate plan with an attorney to determine if it is in the best interest of your estate to avoid probate and how best to accomplish that.