Probate

Wills And Probate

Here you will see how wills can affect the probate process and how probate court can affect a will.

Many people are under the misconception that a will can prevent their estate from going through probate. This, however, is not true. Probate is the ensuing process used to determine if the will presented to the court is the will to be used to transfer the decedent’s assets or whether another will should be used, or none at all.

This means that, even if you have a will, your estate will have to go through probate. The judge will determine whether the will is, in fact, valid and yours. Then he will determine if it will be used to distribute the assets. Most of the time, the will is used, but there are certain situations in which a judge will change distribution or guardianship. This doesn’t happen often when a will goes through probate, but it can happen.

Why would my family have to go through probate with a will?

If you alone own an asset—meaning only your name appears on the asset’s title or registration—then when you die, you can’t own the asset anymore. Now your estate will own the asset. Unfortunately, your executor is not empowered to take control of the estate assets until a judge orders that the executor can. So, while the will determines who will be the executor, and determines who the executor will give assets to, the estate will still have to go through probate before any of this can happen.

However, if you had a trust and it owned your assets, then your family avoids the court transfer process because your successor trustee, the trustee in line after you, the person you had chosen, can do all the transferring without the necessity of a judge creating an order empowering the successor trustee to do so. This enables you to skip the time-consuming and money-costing probate experience.