Before I answer your question, let me say that having a solid will that outlines how you want your estate handled upon your passing is a good idea. It helps to ensure your wishes are followed, and it can make the time after your passing easier on your heirs. That being said, it is wrong to assume that having a will means your heirs will be able to avoid probate altogether.
The first step in understanding why this is so involves knowing what probate involves. The short answer is that probate is the process used to divide the assets of your estate between your heirs. Many people try to avoid this process because it has a reputation of involving a large cost both monetarily and in time. It can also involve a loss of privacy due to the fact that all court documents involved are public record.
The first thing that will take place is the validation of any existing will. The probate court will handle this and ensure that your will is used as the primary focus for dividing your estate according to your wishes. Any instructions left in your will and any challenges made to your will are considered by the probate court. State laws will be followed as they relate to property distribution. This may sometimes affect the outcome of the probate process.
There are ways to set up wills in order to make things easier for your heirs. A self-probating will is one that will typically negate the need to have a will validated by the court. This is accomplished through the use of affidavits tied to it signed off on by any witnesses to the will. These affidavits typically make assertions including:
The signer was mentally competent
The signer was not being coerced
Witnesses were present at the signing of the will
Affidavits may help with validating a will; however, the will may still be challenged. In this event, the validation process will need to take place. Keep in mind that some states disallow self-probating will affidavits if the signee passes shortly after they have signed the document.
There are those estates that do not face the probate process even if there’s not a written will. Once such case involves estates that only include assets that are not being passed on to heirs via a will. Joint accounts, or those with named beneficiaries, may also bypass the need for probate. Such accounts may include:
Jointly held bank accounts
Joint tenancy properties
Investment accounts
Life insurance policies
Keep in mind that the above can vary based on individual states’ laws. Also, it’s worth noting that there are states that will make exceptions for estate assets that fall under certain dollar amounts or that are uncomplicated.
If you’re looking to avoid probate, be sure to work closely with your attorney during your estate planning process. Odds are, if you just rely on a will alone without having this guidance your heirs will face a probate process. If you’re an heir facing probate, there are ways to make the process easier as well. Give us a call today and let’s talk about how we can help.
