As people go through the estate planning process, they may execute a will, but that document only states the wishes of the deceased, it does not actually distribute the property. The personal representative is responsible for distributing the property and closing the estate. However, the whole process must go through probate, which is a court proceeding to ensure the estate is settled properly.
Property that does not need to go through probate
This can be a long and complicated process, but not all property necessarily needs to go through probate and can be passed directly to beneficiaries. Homes held in joint tenancy pass directly to the other joint tenant when one passes away. Transfer on death deeds can transfer the home to beneficiaries directly upon the owner’s death. Similar to joint tenancy, joint bank accounts automatically transfer to the other owner without probate. Proceeds from a life insurance policy are generally not part of the estate after the policyholder dies because they go directly to the beneficiaries, and so they do not have to go through probate. People can also name beneficiaries on various retirement accounts.
Similarly, the property in a living trust typically does not have to go through probate because the terms of the trust will transfer ownership to another party upon death.
Wills are very important, but they do not allow people to avoid the probate process. That being said there are different ways to ensure that not all property will go through probate. Minimizing the amount of property that goes through probate can be advantageous for a few reasons, but the main one is that it makes the probate process easier. Experienced estate planning attorneys understand how to ensure property does not go through probate and may be a useful resource.