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Does a will avoid probate?

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 ha6ve 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.

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Howard Haake is a St. Louis law firm based in Clayton, Missouri focused on business law, criminal defense, family law and estate planning. We handle all business matters from incorporation to acquisition as well as criminal defense charges from arrest to trial. Howard Haake helps clients in St. Louis, St. Charles, St. Peters, O'Fallon, Brentwood, Columbia, Eureka, Richmond Heights, Clayton, Jennings, Kirkwood, Maplewood, Manchester, Northwoods, Olivette, University City, Creve Coeur, Maryland Heights, Bridgeton, Florissant, Ladue, Webster Groves, Hazelwood, Hillsboro, Washington, Union, Hermann, Pacific, and throughout St. Louis County, St. Charles County, Jefferson County, Franklin County, Warren County, Gasconade County, Boone County, Crawford County, Montgomery County, and Marion County.

​​DISCLAIMER: The information on this website is for general and informational purposes only and should not be interpreted to indicate a certain result will occur in your specific legal situation. Information on this website is not legal advice and does not create an attorney-client relationship. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Evan M. Howard, Howard Law,  Avvo Profile

© 2015 by Howard Haake, LLC.

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