Creating a will is one of the most common steps in estate planning, but many people misunderstand what a will can (and cannot) do. One of the most pervasive misconceptions is that simply having a will allows your estate to avoid probate.
In reality, a will must be validated by the probate court to be effective. While it can simplify the legal process, it does not bypass it. To fully avoid probate, additional tools and legal arrangements are necessary. This guide explains how wills work in relation to probate, what assets are exempt, and what strategies can provide a more seamless transfer of your estate.
However, a will must go through the probate process to be recognized by the court. During probate, the court:
Without probate, a will has no legal authority to transfer property.
While a will is critical in estate planning, it does not inherently bypass probate. Instead, it directs how assets are to be handled during the process.
Although a will must go through probate, certain assets can pass outside of probate if properly structured:
These assets transfer automatically to the named individual and are not governed by the will.
For more on bypassing probate, refer to FINRA’s investor guide to beneficiary designations.
| Tool or Asset | Goes Through Probate? | Controlled by Will? | Court Involvement? | Best For |
|---|---|---|---|---|
| Will Alone | ✅ Yes | ✅ Yes | ✅ Yes | Directing probate-based asset transfer |
| Revocable Living Trust | ❌ No | ❌ No | ❌ No | Avoiding probate, maintaining privacy |
| Joint Ownership with Survivorship | ❌ No | ❌ No | ❌ No | Spouses or shared property owners |
| POD/TOD Accounts | ❌ No | ❌ No | ❌ No | Bank accounts, investments, and IRAs |
| Life Insurance with Beneficiary | ❌ No | ❌ No | ❌ No | Passing proceeds directly to heirs |
While a will is important, it does not allow your estate to bypass the probate process. To entirely avoid probate, your estate plan should incorporate additional legal tools that allow assets to pass directly to beneficiaries without court involvement.
A revocable trust allows you to transfer assets into a trust during your lifetime. Upon your death, a successor trustee distributes those assets according to your wishes, without probate and often without delay.
For a professional explanation of how revocable living trusts bypass probate, see ACTEC’s video resource: How Does a Revocable Trust Avoid Probate?
You can name beneficiaries directly on bank accounts, investment portfolios, and retirement accounts. These payable-on-death (POD) or transfer-on-death (TOD) designations allow funds to pass to heirs without court supervision.
Property held in joint tenancy with rights of survivorship automatically transfers to the surviving co-owner upon death, outside of probate.
Together, these strategies can create a seamless transfer plan that keeps your estate private, reduces delays, and minimizes administrative costs.
A will is a vital legal document, but it is not a probate-avoidance tool. To ensure your assets transfer smoothly and privately, your estate plan should include a combination of wills, trusts, and direct beneficiary designations.
By working with an estate planning professional and understanding how these tools work together, you can protect your legacy while minimizing court involvement and delays for your loved ones.
Wondering how to structure your estate to avoid unnecessary delays and legal complexities?
Explore our Estate Planning Overview or contact our team to create a plan that protects what matters most.
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