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Do wills avoid probate?

One estate planning goal some individuals have is probate avoidance. Why might a person not want their assets to end up in the probate process when they pass away? The probate process can sometimes be complicated, emotionally-draining and time-consuming. Thus, one of the common hopes with probate avoidance is that it will help make things easier for one’s loved ones.

One thing individuals might wonder is if wills can help with probate avoidance. While wills can help with a variety of different estate planning goals, probate avoidance is not one of them. Wills are subject to the probate process, so including an asset in a will would not take it out of probate. 

An important thing to note is that, while wills do not avoid probate, they can help with keeping the probate process from becoming unnecessarily complicated. Wills can provide clear instructions as to how assets in an estate are to be distributed, which can keep after-death asset distributions from having to be separately determined by a court during the probate process. 

Another thing worth noting is that the fact that wills are subject to probate does not mean there are no ways to further the goal of probate avoidance in an estate plan. There are other estate planning devices, like trusts, that can take assets out of the probate process. 

As this illustrates, estate planning devices differ in what types of estate planning goals they can help with. Estate planning lawyers can assist individuals with identifying what estate planning devices could be used for furthering their particular goals.

Source: FindLaw, "What Not To Include When Making a Will," Accessed Jan. 5, 2016

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