Can a Will Get an Estate Out of Probate?

by Cindy Hill
The probate process is guided by the terms of a will.

The probate process is guided by the terms of a will.

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State laws regarding probate procedure vary, and many states offer a streamlined procedure for very small estates. However, as a general rule, wills must be admitted to probate. Wills are not executed as a means to avoid probate. In fact, it's generally the opposite--wills are designed to guide the probate court's administration of the estate. Trusts, life insurance policies and pay-on-death accounts are all intended to be used to avoid probate, but wills are not.

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Probate Process

Probate is the legal process of administering the estate of a person who has died, in accordance with state laws and the directives in that person's will. The probate court appoints or approves an executor of the estate. The executor gathers the assets of the decedent--the person who has died--then pays off the decedent's creditors and distributes any remaining assets of the estate to the beneficiaries named in the will. The executor has strict fiduciary duties regarding the administration of the estate, and must account to the probate court and beneficiaries of the estate for every expenditure. Heirs can challenge inappropriate actions by the executor, and can also present the probate court with any claims regarding the validity of the will.

Probate and Non-Probate Assets

Non-probate assets are those that pass automatically to someone else upon your death. Jointly-owned property with survivor benefits, pay-on-death bank and investment accounts, and living trusts all become the property of the named beneficiary immediately upon your death, without passing through the probate process. Life insurance policies that name individual beneficiaries rather than the estate as beneficiary also pass outside of the probate process. Probate can be avoided if all of your assets are in these non-probate forms of ownership. All other assets that require a transfer of ownership or title must go through the probate process, with or without a will.

Trusts

A living trust--one established and funded during your lifetime--can be used as a substitute for a will. Properly drafted, a living trust will pass assets to the trust beneficiaries without having to go through the probate process. Testamentary trusts, however, are trusts created within your will. These do not avoid probate, as the will and the trust contained within it must be probated. Testamentary trusts can help make estate administration easier and can provide a means for controlling the distribution of estate assets, for example, by distributing the money to a beneficiary in payments over time instead of a lump sum.

Streamlined Process

Most states have a streamlined probate process for administering small estates. Rules vary widely from state to state. In Massachusetts, for example, the streamlined probate process is only available to estates valued under $10,000 and without a will. In Illinois, simplified probate procedures are available to estates under $100,000, with or without a will. Although the streamlined process does not avoid probate altogether, it can be less expensive and faster than full probate administration. Carefully check the probate laws of your state to determine whether an estate with a will qualifies for this simplified process.