Does Having a Will Avoid Probate? Understanding the Relationship between Wills and Probate

The process of probate often seems daunting and mysterious, leaving many individuals wondering if having a will can help them avoid it altogether. While the purpose of a will is to guide the distribution of assets after a person’s death, its relationship with probate is more complex. In this article, we will explore the connection between having a will and the probate process to shed light on how they interrelate.

Understanding Probate

Probate is the legal procedure that validates and administers the estate of a deceased person. It involves various steps, including authenticating the will, inventorying assets, settling outstanding debts and taxes, and distributing remaining property to beneficiaries. The probate process aims to ensure the orderly transfer of assets and protect the rights of creditors and beneficiaries.

The Role of a Will

A will, also known as a last will and testament, is a legal document that expresses an individual’s wishes regarding the distribution of their assets and the appointment of an executor to oversee the process. It allows you to name beneficiaries and specify how you want your assets distributed after your death. A will can also designate guardians for minor children and outline funeral arrangements.

Does Having a Will Avoid Probate?

Contrary to popular belief, having a will does not automatically avoid the probate process. In fact, a will typically needs to go through probate to be legally recognized and executed. During probate, the court reviews the will’s validity, confirms the appointment of the executor, and ensures that the assets are distributed according to the deceased person’s wishes.

However, having a will can simplify the probate process in several ways:

  1. Executor Appointment: A will allows you to nominate an executor of your choice, someone who will manage the probate process and ensure your wishes are carried out. While the court still needs to validate this appointment, having a named executor can streamline the process and avoid conflicts among family members.
  2. Asset Distribution: A will provides clear instructions for distributing your assets. This can help minimize disputes and reduce the likelihood of the court needing to make decisions on your behalf. When your intentions are explicit, the probate court can execute the distribution more efficiently.
  3. Guardianship Designation: If you have minor children, a will enables you to designate guardians to care for them in the event of your passing. While the court’s ultimate decision will prioritize the best interests of the children, your wishes expressed in the will carry significant weight.
  4. Intestacy Avoidance: Without a will, your estate will be subject to intestacy laws, which vary by jurisdiction. Intestacy occurs when someone dies without a valid will, leading to potential complications and extended probate proceedings. By having a will, you can avoid intestacy and have more control over the distribution of your assets.

Alternatives to Probate

While a will usually requires probate, it’s worth noting that some assets can bypass the process altogether. Assets held in joint tenancy with right of survivorship, payable-on-death (POD) accounts, and assets held in a living trust typically pass directly to the designated beneficiaries without going through probate.


In summary, having a will does not exempt your estate from the probate process. However, a will plays a crucial role in guiding the probate proceedings by clearly expressing your wishes regarding asset distribution, executor appointment, and guardianship designation. By having a will in place, you can provide a roadmap for your loved ones and potentially streamline the probate process. It is advisable to consult with an attorney to ensure your will complies with the relevant laws in your jurisdiction and to explore additional estate planning options that may help minimize the probate process.

Video Transcript

Does Having a Will Avoid Probate?

No. A will never avoids probate because a will is the instructions for a court in probate. A trust will avoid probate, but a will does not. And a trust only avoids probate if you have your assets in the trust prior to your passing. A trust is instructions for a trustee to handle everything that you have put in the trust before you pass. A will is instructions for a court to handle everything that you own, not in a trust, upon your passing. So a will never avoid probate. A will is the instructions for a court in a probate proceeding.


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