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Does a Will Avoid Probate?

Potential clients frequently come to our firm asking about trying to avoid probate. Some of those clients assume that a will alone will help them avoid probate. That is not the case.

What a Will Does

First, it is important to understand what a will actually does. A will is really a plan or set of directions to the Probate Court. The will document first directs the appointment of a personal representative or person to administer the estate.

In other words, the personal representative is tasked by the drafter to be the person that has authority to gather the estate property together, report to both the court and any interested parties, pay all of the expenses and ultimately distribute the estate to any named beneficiaries and heirs under the will.

A will’s plan or directions are put into action through a document known as letters of authority which are issued by the Probate Court that gives the personal representative permission to undertake acts on behalf of the estate.

What a Will Doesn't Do

As important as it is to understand what a will does, it is also important to understand what a will is not. A will does not give the heirs under an estate any authority to take estate assets. It also does not provide any authority to third parties, such as banks, stockbrokers or the Secretary of State to take any action which may or may not be consistent with the terms of the will.

In other words, a will cannot be taken to a bank by an heir to change the names on an account held by the deceased. Put another way, a will does nothing unless someone takes it to a probate court and puts the plan into action. Without enforcement by the court, the document might as well stay in a drawer somewhere.

Wills and Avoiding Probate

While understanding that a will must be effectuated by a probate court it is important for clients to temper their desire to avoid probate. Sometimes we have the opportunity to review estate plans either created by clients themselves, perhaps prepared by online services or sometimes by other lawyers, that have conflicting results.

For example, a client could have drafted a will that directs a personal representative to distribute their assets equally among their children but then puts only one child on as an owner of their bank account. By adding a child’s name to an account as an owner the client effectively disinherits their other children from receiving any of that asset. We have seen this type of competing instructions happen with regard to other assets as well such as real estate, brokerage accounts, and vehicles.

Although wills do not avoid probate they are very economical and are effective at making sure that a person’s assets are distributed according to their wishes. That being said, we believe it is important to seek the advice of a professional that regularly practices in the area of estate planning to ensure that your desires are properly documented and your plan of action is put into place according to your wishes.

Let Us Help You

Any competent estate planning lawyer will assemble a list of your assets to ensure that we understand all of the pieces that have to be addressed in an estate plan. The estate plan itself will address each of those pieces so that there is no conflict between the various documents that are put into place. Unfortunately, clients run the risk of leaving conflicting instructions if a piecemeal approach is taken or the client simply orders a fancy will from some online service that cannot legally provide legal advice or counseling.

The estate planning attorneys of Penzien & McBride, PLLC have been helping families and business owners to make these types of decisions for nearly two decades. If you are looking for a compassionate professional that can help you through the estate planning process, or if you would like additional information about our services, give us a call at (586) 690-4400 or complete our contact us form.

Additional Reading: Where Do My Assets Go if I Die Without a Will in Michigan?