Why Having a Will Ensures Probate

If having a will ensures probate, then why do I want to have a will? Most people understand that it is important to have a will in order to protect their loved ones and to ensure that their wishes are carried out after their death. In order to understand the importance of having a will, it is helpful to understand the probate process and to review the purpose of having a will.

What is Probate?

Probate is the legal process of settling a person’s financial affairs after his or her death. The probate court appoints an administrator, commonly referred to as the executor or the personal representative, to administer the estate. The court oversees the administration in accordance with the probate laws in that state.

The purpose of probate is to pay your debts after your death and distribute your assets to your heirs. When a person holds legal title to an asset such a vehicle or real estate, the only legal way to remove the person’s name from the title and transfer the title to another person is through the probate process. While some jointly titled assets may pass directly to the co-owner under various state laws, not all assets can be titled in an heir’s name without going through probate. Probate provides a “legal record” of the transfer of title from one name to another name.

Probate is also necessary to validate the decedent’s will and identify heirs. If a will does not exist, intestate laws determine the decedent’s heirs and how the decedent’s property will be distributed among the heirs. Without probate, the person’s property cannot be legally transferred to the heirs regardless of whether or not the person had a valid will at the time of his or her death.

What is the Purpose of a Will?

The main purpose of a will is to identify your heirs and distribute your assets to your heirs. Without a will, the state decides who receives your property. Your family does not have any say in how your property is distributed if you do not have a valid will. However, distributing your property is not the only purpose of a will.

In your will you can:

Choose the person who administers your estate (i.e. your executor or personal representative)
Name your heirs and direct that specific heirs will not receive anything from your estate
Specify how certain items will be distributed (i.e. sentimental items or family heirlooms can be left to a specific person)
Name a guardian and/or conservator for minor children
Set up a trust and name a trustee for minor children
Provide for special needs children
Leave money or property to charities
Provide for the care of your pet

Does a Will Avoid Probate?

Now that we have reviewed why we need the probate process and what we can do with a will, why does a will ensure probate? One of the most common misconceptions about preparing a will is that it will avoid probate. Having a will almost always ensures that you will go through the probate process. As discussed above, your will directs how your estate will be distributed and who will receive your property upon your death.

Therefore, you want to have a will and you want your estate to go through the probate process so that your heirs can receive legal title to your property. You also want your estate to be probated if you have minor children to protect their inheritance. The probate court oversees the administration of your child’s inheritance until your child reaches the age required to take control of his or her inheritance. This ensures that your child’s inheritance is protected.

Avoiding Probate

Some people try to avoid the probate process by jointly titling property; however, this can create several problems. The co-owners creditors can attach liens to his or her interest in jointly owned property and, if the co-owner files bankruptcy, jointly owned property is subject to the bankruptcy estate. Furthermore, you cannot sell or mortgage jointly owned property without the co-owner’s consent.

Trusts are another way people try to avoid probate. While there are some types of trust agreements that will avoid probate, you should always discuss the pros and cons of various trust agreements with a probate attorney before deciding to utilize trusts as a way to avoid probate.

Property Not Subject to Probate

It is important to note that some property will not pass through probate even though you have a will and state in your will that this property should be distributed to a specific heir. For example, life insurance, retirement accounts, and other financial accounts that have a beneficiary designation do not pass through your estate unless you name your estate as the beneficiary. Therefore, if you forget to change the beneficiary on your 401k account from your ex-spouse to your child, your ex-spouse will inherit your 401k account regardless of what your will states.

It is important to discuss non-probate property with your probate attorney during the estate planning process. The best way to ensure that your property is distributed according to your wishes is to have a comprehensive estate plan in place now rather than later.