Does a will avoid probate?
Updated: Jan 16, 2022
I get this question almost once a week. My clients frequently assume that creating a will protects their assets from going through probate. Then I have to explain that a will only applies to assets that go through probate. The will is a document that tells the court exactly what to do with your property. However, while the court determines what to do with your property, you have to follow the probate procedures, including publishing your estate information, waiting six months for this publication, which is actually an advertisement, to be run in the newspaper, and then letting creditors or other parties challenge your will by filing lawsuits against your heirs.
Thankfully though, Missouri allows for non-probate transfers. These allow for your assets to be distributed before going through probate. The easiest example that most people encounter is when you try to register your car at the DMV, they ask you how you will transfer on death or TOD your car to. This is an example of a non-probate transfer. You can use these with your bank accounts, your retirement accounts, savings accounts, stock accounts, and even your house (through the use of a beneficiary deed).
With properly set up non-probate transfers for your property, a will should not have any property to control within the probate court, and therefore becomes irrelevant. That being said, should you still have a will? The short answer is that you absolutely still should have a will prepared. The way to think about it is that a will is a sort of insurance policy should you have any assets that ultimately end up in the probate court. The will tells the court who to appoint, whether they have to post a bond, and how these assets are distributed. Without the will, the court makes these determinations themselves.
If you have any questions you can always call us for a free consultation.