Does a Will avoid probate?
Simply having a will does not mean your estate will avoid probate when you die. See our companion video blog describing "What a will is?" and the legal functions it performs.
Ownership of property after your death may pass to a new owner in only one of two ways:
- Either by Private Contract.
- Or by Court Order.
Therefore any property you own at your time of death that does not pass by private contract to a new owner must pass by Court Order. And Probate is the legal proceeding through which Court Orders determine the assignment and retitling of property.
Some examples of private contracts that transfer property of a decedent outside of probate would be life insurance proceeds payable directly to a beneficiary, Pay On Death bank accounts, or real estate held in Joint Tenancy With Right of Survivorship provisions for another person.
It’s therefore possible for one to structure their affairs and have all their property at death pass to others without opening a probate, but such circumstances are very rare given the complexities of modern life.
If you die and leave an estate, failure to have a current estate plan in place leaves your wishes open to interpretation by lawyers in court who ultimately argue to convince a judge where to assign your property. For this reason, even people with the most modest estates are encouraged to develop basic estate plans to guide the disposition of their property when they pass.