Today I took another call from a new client. She started the conversation by saying “we want a will so that our kids can avoid probate”. My response launched us into a lengthy, but informative conversation.
First, a will does not avoid probate. A will facilitates probate by telling the court who you want to do what, and who should get your probate property.
Second, you avoid probate by not owning probate property. Probate property can be defined as property that has no clear label on it stating where it should go upon your death. A bank account is a good example. In contrast, people own non-probate property. That does have a label on it, usually a beneficiary form. The property goes to the name(s) on the beneficiary form.
Third, avoiding probate is often a cumbersome and costly experience, one that may lead to an unnecessary trust. In my opinion, being organized is more important than avoiding probate. If you set up a trust, but your papers are a mess your heirs will still end up hiring an attorney to sort everything out.
Fearing probate? My answer is to get yourself organized….a simple will can go a long way if your papers are in order!