One of the most common misconceptions in estate planning is that having a will allows an estate to avoid probate.
It does not.
In fact, a will is typically the document that directs how property is distributed through the probate process, not around it.
For homeowners and families in Maryland and Washington, DC, understanding this distinction is critical when evaluating whether a will alone is sufficient to accomplish their estate planning goals.
What Does a Will Actually Do?
A will is a legal document that specifies:
- Who should receive your assets
- Who should serve as your personal representative (executor)
- How your estate should be administered
A will can provide valuable instructions and reduce uncertainty, but it generally does not avoid probate.
Instead, the probate court uses the will as a roadmap for administering the estate.
What Is Probate?
Probate is the legal process through which:
- A will is validated
- A personal representative is appointed
- Debts and expenses are paid
- Assets are distributed to beneficiaries
If assets are owned solely in the deceased person’s name, probate is often required regardless of whether a will exists.
For further information regarding probate administration in Maryland, visit:
https://registers.maryland.gov/main/index.html
For information regarding probate in Washington, DC, visit:
https://www.dccourts.gov/services/register-of-wills
A Will Does Not Change Ownership During Lifetime
One reason probate is still required is that a will does not transfer ownership during the owner’s lifetime.
For example, if a home is titled solely in an individual’s name, the property remains titled that way until death.
At death, someone must have legal authority to transfer the property.
That authority is often obtained through probate.
What Assets Can Avoid Probate?
Certain assets may pass outside of probate, including:
- Property held in a revocable living trust
- Assets with beneficiary designations
- Transfer on Death (TOD) accounts
- Certain jointly owned property with survivorship rights
These assets generally transfer according to their ownership structure or beneficiary designation rather than through the will.
Why Many People Need More Than a Will
For some individuals, a simple will may be entirely appropriate.
However, a will alone may not accomplish goals such as:
- Avoiding probate
- Avoiding ancillary probate in another state
- Simplifying administration for family members
- Maintaining privacy
- Coordinating the transfer of multiple properties
In those situations, additional planning tools may be beneficial.
What About Real Estate?
Real estate often creates the biggest probate challenges.
If a home is owned solely by the deceased owner, probate is frequently required before the property can be sold or transferred.
This becomes even more significant when property is located in another state.
For example, if a Virginia resident owns real estate in Maryland and dies owning that property individually, a Maryland ancillary estate may be required.
For further information, visit:
https://gentileproplaw.com/what-is-an-ancillary-estate/
How Trusts Differ From Wills
Unlike a will, a properly funded revocable living trust can own assets during the owner’s lifetime.
Because the trust already owns the property, probate may not be necessary for those assets after death.
However, creating the trust is only part of the process.
The trust must also be properly funded.
For further information, visit:
https://gentileproplaw.com/why-your-trust-may-not-avoid-probate/
The Most Common Estate Planning Mistake
Many families assume that because a loved one had a will, probate can be avoided.
Unfortunately, the opposite is often true.
A will is generally the document that directs how probate should proceed.
Without additional planning, the existence of a will alone typically does not eliminate the probate process.
The Bottom Line
A will is an important estate planning document, but it generally does not avoid probate in Maryland or Washington, DC.
Instead, a will usually serves as the instructions for how probate should be handled.
For individuals seeking to minimize probate, additional planning strategies may be appropriate, including trusts, beneficiary designations, and proper ownership structures.
Need Help Evaluating Your Estate Plan?
If you are unsure whether your current estate plan will avoid probate, or if you own real estate in Maryland or Washington, DC and want to understand your options, Gentile Property Law Office, LLC can help evaluate your ownership structure and recommend appropriate planning strategies.
For more information, visit:
To schedule a consultation, visit:
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