Planning your wills and probate for estates is more than building wealth. It’s also about safeguarding the ones you care about and assuring them that your intentions are actually honored after you’re gone.
According to Denton will and probate lawyer Ryan T. Webster, a will lets you set up who you want your property to be handed over to once you pass away. This estate planning tool also allows you to appoint someone to be in charge of your estate and day-to-day affairs when you die. Another key feature of a will is designating someone to be the guardian of your children in circumstances where the other parent also passes away.
More than 80% of Americans recognize the value of estate planning, yet only 24% of Americans have actually made a will. According to a 2025 estate planning survey, will ownership is down 33% when compared to 2022. Meanwhile, 43% of people without a will are still procrastinating and say they haven’t gotten around to making one.
Many individuals who take part in estate planning often mistakenly believe that having a will exempts their estate from undergoing probate. In practice, a will assists in defining the process of probate but it does not negate the process itself. Probate applies when someone dies based on how the assets are owned, not on whether a will is present.
Knowing even a little difference between probate and wills can play a fundamental role in one’s comprehension of what estate planning is. Let’s discuss these distinctions and their implications for estate planning.
What a Will Does and Does Not Do
A will is a legal document that states how your property will be divided upon death. It also designates an executor who will be tasked to administer property distribution.
Before property is transferred, the will must first be authenticated by a probate court. Dying without a wills and probate does not necessarily imply that the assets will be removed from probate. Instead, the courts will follow the rules set forth in the state’s intestacy law and distribute the assets accordingly.
What Probate Actually Involves
Probate is a legal procedure initiated by the judge with the intention of collating all assets, clearing debts and income taxes, and then allocating the remaining balance among the heirs.
The procedural length and value of probate cases also differ between the jurisdictions and the complication levels of the estates. Some states have streamlined procedures for smaller estates. A lot of estates that end up in probate usually wrap things up within a year.
Estates that are contested, involve out-of-state real property, or have complicated business interests can take longer to resolve and incur higher costs. People often criticize probate for being slow, expensive, and burdensome.
One major drawback of a probate is that it is treated as a public record. The court file contains the will, the inventory of assets, and the identity of beneficiaries, making them publicly accessible. For those who want the distribution of their estate to remain private, this issue is a meaningful concern.
According to the law firm website https://www.engels-janzen.com/, a benefit of creating a living trust is that the management or distribution of assets may be done outside of court. This feature keeps the process and the records involved private, unlike the probate process.
Probate court may be necessary if a person suspects a trust executor of mismanagement or believes they should have inherited certain assets or property.
The Assets That Actually Avoid Probate and Why Most People Get This Wrong
Since probate usually starts based on how assets are titled, anything that moves by operation of law rather than through a will goes completely outside the probate process. The assets listed below are the ones most people actually mean when they say they want to avoid probate.
Beneficiary Designations
Insurance policies, retirement accounts, annuities, and payable on death (POD) or transfer on death (TOD) accounts go directly to the designated beneficiary upon death without having to go through probate. Beneficiaries can receive these accounts simply by presenting the death certificate of the account owner.
It is important to keep the beneficiary’s designation current. The designation will always supersede the will. For instance, a former spouse will receive the assets if the beneficiary designation is never changed after the divorce.
Joint Ownership With Right of Survivorship
Joint ownership with the right of survivorship is a system where the holder of the property becomes the sole owner upon the death of another. It does not have to go through the process of probate. This rule applies only when the owners do not die at the same time. Otherwise, it goes through probate.
Assets Held in a Funded Revocable Living Trust
A revocable living trust allows the estate to be transferred directly to the heirs upon the grantor’s death without having to undergo probate proceedings. A living trust is both flexible and private. The assets covered by such trusts are often more numerous compared to those transferred via beneficiary designation alone.
The key point about the trust itself is that its powers apply only to the assets that have been transferred into the trust. Any other assets not included in it may go through probate proceedings, which is why some people prefer to create a pour-over will.
How Wills and Non-Probate Planning Work Together
In an estate plan, you will find a will, a beneficiary designation, and a living trust in cases where it is necessary.
A will is used for the probate estate and appoints the executor and guardian of minor children. A beneficiary designation helps pass on retirement accounts or life insurance policy money to your heirs.
Meanwhile, a fully funded living trust helps transfer your assets privately and effectively. It helps you give detailed instructions in cases of complicated estates, property transfers, and disabled beneficiaries.
The Functional Question: What Happens to Each Asset at Death
The initial focus in planning an estate should not be on signing any specific document but rather on the titling of each piece of property and its beneficiary designation. These two elements distinguish the probate estate from the non-probate estate.
The former is influenced by a will, while the latter can be affected by a beneficiary designation, joint tenancy, or the creation of a funded trust.
All the aspects related to each method of transferring property and the specifics of probate estates are discussed in detail by the American Bar Association.
Proper planning using the methods described will lead to a successful estate settlement.
