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Does a Will Bypass Probate?



Leaving a will outlining how you would like your estate divided after you die is not only a good way to make sure your wishes are honored, but it also makes a naturally stressful time easier for your heirs. Unfortunately, many people draw up wills believing that doing so will help avoid probate. This is not necessarily true.

What Is Probate?

Probate is the legal process for distributing your estate assets among your heirs. People often want to avoid probate because it can be an expensive and time-consuming process, and, because court documents are contained in the public record, a probate proceeding can also mean a loss of privacy.

The first step of the probate process is validating the will in probate court. Instead of bypassing probate, your will is actually the primary focus of the process to distribute your estate. The probate court will interpret the instructions in your will, if necessary, and consider any challenges to your will. Probate can also address terms in wills that do not meet state laws regarding property distribution. For example, some states do not allow you to completely disinherit a spouse or dependent children in your will.

Self-Probating Wills

Some wills make the probate process easier on your heirs. Self-probating wills, for example, usually bypass the need to validate the will in court because they have affidavits attached that were signed by the will's witnesses and make certain assertions, such as:

  • The witnesses watched the will's signing at the request of the deceased.
  • The deceased seemed mentally competent.
  • The deceased was not coerced into signing.

In most cases, the probate court will consider a will with signed affidavits attached as valid, but the affidavits do not prevent someone from challenging the will. In the case of a legal challenge, the document will need to be validated. Some states do not accept self-probating affidavits if the person dies shortly after signing the will.

Certain Estates Do Bypass Probate

Certain estates are not subject to probate regardless of whether there is a written will. In general, this is true when the estate is made up of only assets that, by their nature, do not pass to heirs under a will. Specifics vary by state, but generally, joint accounts or accounts with named beneficiaries bypass probate proceedings. These types of assets include:

  • Life insurance policies
  • Investment accounts
  • Joint bank accounts
  • Property held in joint tenancy

Some states also make exceptions for uncomplicated estates or those under a specified dollar amount. For example, Illinois allows you to use an Affidavit of Small Estates to distribute estates under $100,000, and California exempts estates worth less than $20,000 if the only heirs are the deceased's spouse or minor children.

To help your heirs avoid probate, talk with an experienced probate lawyer to explore a plan for your estate.