If I Have a Will, Do I Need Probate?

Image of gavel. Photo from Unsplash.

There’s a general misconception that if you have a valid Will, your loved ones will not need to go through probate. However, a Will does not help you avoid probate.

Having a Will gives you the opportunity to choose who will receive your assets on your death and to nominate who will be the Executor to administer your estate.

However, neither of these two things happen without probate. Unless your chosen Executor is appointed by a judge to be your Executor, your chosen Executor is simply your nominated Executor and not your appointed Executor. This means that the person you choose to be your Executor has no authority to access your accounts, to sell your house, and to deal with your financial institutions unless a judge formally appoints the Executor.

An appointed Executor has very little authority to distribute your assets without a judge’s approval. An Executor may be able to distribute small preliminary amounts to your Beneficiaries but cannot make a final distribution until a judge gives approval.

There are three ways to avoid probate:

     1) If you have less than $166,000, no probate is needed with or without a Will.

     2) Joint accounts and accounts with Beneficiary designations will be distributed to the joint owner or the Beneficiary without probate.

     3) If you have a Trust, your Trustee can manage and distribute Trust assets without probate.

None of these three methods to avoid probate is writing a Will. While a Will is helpful to choose who will receive your assets and to choose who will manage those assets after your death, it will not help you avoid probate.


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