Does having a will mean I don't have to go through probate?

Does having a will mean my estate won't have to go through probate?

No, many people are under the common misconception that if they have a will, their estate won't have to go through probate. Unfortunately, this is not true. Probate is actually the process of carrying out the provisions in your will. Although most of us view our will as a private document written for our family, it is actually a public set of instructions for a court.

What happens during the probate process?

Probate is a multi-phase court process. It consists of:  1) court review and approval of the formalities of your will to verify it was properly executed; and 2) the court process to qualify a personal representative (PR) to distribute your probate property to the people chosen by you in your will. The court requires an inventory, accountings, and other documents to make sure the PR identifies your property and distributes it to the correct beneficiary.

What is the difference between probate and intestacy?

When a court accepts your will for probate, the court is making a formal finding that your will was properly executed. If the court finds your will wasn't executed properly or you didn't have the legal capacity required to execute a will, then the court declares your will to be invalid. If your will is invalid, the court cannot distribute your property using the will and the court must look to an earlier valid will or state law to see who will receive your property. When there is no valid will, your estate passes under intestacy. Intestacy can be partial or complete depending on the extent of the problems with your will. Most of us don't want our estate to go through intestacy because we want to make our own choices about who will receive our property.

If  the court determines your will is valid, your estate will probably have to go through some form of  probate process to distribute your probate property. Probate comes in different types and lengths. This is another reason for confusion about wills and probate. We've all heard about people who had a will but supposedly "didn't have to go through probate."  This probably means the probate process was so short the family didn't realize it was a form of probate or the family didn't realize they were supposed to file the will with the court. (Oops! There may be problems later with title to property or creditors.)

There are shorter probate tracks for small estates and some options for the quick payment of allowances for surviving spouses and children. Not every estate will be able to use the small estate or allowance processes and avoid a full probate. If you, a friend or colleague experiences a death in the family and needs help, please don’t hesitate to call on us for help. The number for our firm is (704) 887-5242. 


Nancy Roberts
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