Do All Wills Go Through Probate?

Many people ask, “Does a will avoid probate?” It’s an important question, especially if you want to protect your family from stress, delays, and extra costs after you’re gone. The short answer is: not always. In this guide, we’ll explain how a will works, what probate is, and when probate can or cannot be avoided.

What Is a Will?

A will is a legal document that explains what should happen to your property after you die. It can:

• Say who gets your money and property

• Name an executor to handle your estate
  
  
• Name a guardian for minor children
  
  

A will gives clear instructions, but many people are surprised to learn that a will alone does not automatically avoid probate.

What Is Probate?

Probate is the legal process used to settle someone’s estate after death. During probate, the court:

• Confirms that the will is valid
  
  
• Identifies the person’s assets
  
  
• Makes sure debts and taxes are paid
  
  
• Distributes the remaining property to heirs
  
  

Probate exists to protect everyone involved, but it can also be slow, expensive, and public.

Does a Will Avoid Probate?

This is one of the most common estate planning questions. The answer is:

No, a will does not automatically avoid probate.

If property is owned only in your name and does not have a beneficiary listed, it usually must go through probate even if you have a will. The will tells the court who should receive the property, but the probate process is still needed to carry out those instructions.

Do All Wills Go Through Probate?

Not all wills go through probate, but many do. Whether probate is required depends on:

• What assets you own
  
  
• How those assets are titled
  
  
• Whether beneficiaries are named
  
  
• Whether you used tools like trusts
  
  

Some estates go through full probate, while others go through a shorter process or avoid it almost completely.

When a Will Usually Goes Through Probate

A will is likely to go through probate if:

• You owned property only in your name
  
  
• You did not place assets into a trust
  
  
• You did not name beneficiaries on accounts
  
  
• Some debts or taxes must be paid
  
  

In these cases, the court oversees the process to make sure everything is handled legally and fairly.

When Probate Can Be Avoided

Certain assets can pass to loved ones without probate, even if you have a will.

1. Jointly Owned Property

If property is owned jointly with rights of survivorship, it usually transfers directly to the surviving owner. This is common with married couples.

2. Accounts With Named Beneficiaries

Many financial accounts allow you to name beneficiaries, including:

• Life insurance policies
  
  
• Retirement accounts like IRAs and 401(k)s
  
  
• Payable-on-death (POD) bank accounts
  
  
• Transfer-on-death (TOD) investment accounts
  
  

These assets typically pass directly to the named person and do not go through probate.

3. Living Trusts

Assets held in a revocable living trust do not go through probate. The trust, not the individual, owns the property. After death, the trustee distributes assets according to the trust instructions.

Small Estate Probate Options

Many states offer simplified probate procedures for small estates. If the total value of the estate is under a certain amount, heirs may be able to use a simpler process or affidavit instead of full probate. The rules and limits vary by state.

Why People Try to Avoid Probate

Many families prefer to limit or avoid probate because it can be:

• Time-consuming: Probate may take months or longer
  
  
• Costly: Court and legal fees can reduce what heirs receive
  
  
• Public: Probate records are often open to the public
  
  
• Stressful: Delays and court involvement can cause family tension
  
  

A good estate planning attorney can reduce these issues and make things easier for loved ones.

What Happens If Someone Dies Without a Will?

If someone dies without a will, this is called dying intestate. In that case:

• State law decides who inherits
  
  
• Probate is almost always required
  
  
• Loved ones may not receive what the person intended
  
  

Having a will is still very important, even though it may not avoid probate on its own.

How a Will and Probate Work Together

A will and probate serve different roles:

• The will explains your wishes
  
  
• Probate is the court process that carries them out
  
  

The goal of estate planning is often to reduce how much probate is needed while still keeping clear legal instructions in place.

Key Takeaways

• Does a will avoid probate? No, not by itself
  
  
• Do all wills go through probate? No, it depends on the assets
  
  
• Can probate be reduced or avoided? Yes, with trusts, beneficiaries, and proper planning
  
  
• Is a will still important? Absolutely
  

If you want help creating a will or planning your estate to reduce probate, contact The Law Office of Mary King P.L. today for trusted legal guidance.

FAQs About Will and Probate