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Does a Will Keep Me Out of Court?

By William D. Block of Block Legal Services, LLC posted in Wills on Friday, September 16, 2016.

Wills may not do what you think they do. Many people believe that their affairs are in order because they have a will, and that their children won't have to bother with court once they're gone. This dangerous assumption has forced many estates to go through a process that was never wanted or intended, and can cost the beneficiaries of an estate a lot of time, money, and grief.

To answer the question, no! Wills do not keep your estate out of the probate court. A will is essentially a set of instructions to the court about what is supposed to happen with the assets going through the probate process. A will only deals with assets in probate, and has little to no bearing on any property outside this process.

In a previous post I gave an overview of the general limitations of wills. In this post, I would like to go into more detail about the first limitation: Wills Do Not Prevent Probate.

To understand probate better, I find it helpful to think about why probate exists. As a process, probate transfers legal ownership from a person who has died to a new owner. This process is only needed if there aren't any other legal mechanisms in place that will transfer the ownership. If there is something in place to make that transfer, those assets will not go through probate. This might mean that the pool of assets distributed by a will is a lot smaller than was planned when the will was written. If the will is intended to be the primary way that assets are to be distributed, then it is important to make sure that all of the assets will end up going through the probate process.

In the end, the biggest caution is to not be over-confident about your estate plan just because you have a will in place. Although the Last Will and Testament is often thought of as the cornerstone document in estate planning, the truth is that with most modern estates the will is never actually used. When a will is used, it's often because something went wrong in the planning process.

Make Sure You Know What Your Plan Does

At Block Legal Services, I can review your existing plan and help you understand what it does and what it doesn't do. If your existing will doesn't fit you anymore, I can help create a plan does mind.

In my next post, I will talk about probate-avoidance techniques that you already have and don't know it!