Do All Wills Go Through Probate? When Probate Is (and Isn't) Required

Yes, wills must go through probate to be legally valid and enforceable. Having a will doesn't avoid probate—it actually requires probate for the court to authenticate it. However, many assets pass outside of probate entirely through beneficiary designations, joint ownership, and trusts, regardless of what the will says.

This is one of the most common misconceptions in estate planning. Let's clear it up.

Why Wills Require Probate

A will is just a piece of paper until a court says otherwise. Probate is the legal process that:

1. Validates the will – Confirms it's authentic, properly executed, and the most recent version
2. Appoints the executor – Gives legal authority to the person named to manage the estate
3. Notifies interested parties – Ensures heirs, beneficiaries, and creditors know about the estate
4. Oversees distribution – Makes sure assets go to the right people

Without probate, the will has no legal effect. Banks won't release funds, title companies won't transfer property, and no one has authority to act on behalf of the estate.

Assets That Usually Require Probate

These assets typically must go through probate (unless in a trust):

• Real estate owned solely in the deceased's name
• Bank accounts without beneficiary designations
• Investment accounts without transfer-on-death designations
• Vehicles titled only in the deceased's name
• Personal property of value (jewelry, art, furniture, collectibles)
• Business interests owned individually

Key point: If an asset is titled only in the deceased's name, probate is usually required to transfer it.

Assets That Bypass Probate (Even With a Will)

These assets pass directly to beneficiaries without going through probate:

Beneficiary Designations

• Life insurance policies – Pay directly to named beneficiaries
• Retirement accounts (401k, IRA, pension) – Transfer to named beneficiaries
• Payable-on-death (POD) bank accounts – Transfer to named payees
• Transfer-on-death (TOD) investment accounts – Transfer to named beneficiaries

Joint Ownership

• Joint tenancy with right of survivorship – Property passes to surviving owner(s)
• Tenancy by the entirety (spouses) – Passes to surviving spouse
• Joint bank accounts – Surviving owner takes full ownership

Trusts

• Living trust assets – Pass according to trust terms, no probate required
• Beneficiaries of trusts – Receive assets through the trust, not the will

Other

• Some small estates – May qualify for simplified procedures that technically aren't full probate

The Will Doesn't Control Everything

This surprises many people: your will doesn't control assets with beneficiary designations.

Example: Your will says "I leave my 401(k) to my daughter." But your 401(k) beneficiary form names your ex-spouse. The ex-spouse gets the 401(k)—the beneficiary designation controls, not the will.

Example: You leave "all my property" to your children in your will. But your bank accounts are payable-on-death to your brother. Your brother gets those accounts.

Lesson: Keep beneficiary designations updated. They override the will.

Simplified Probate and Small Estates

Many states offer simplified procedures for smaller estates that avoid full probate:

Small Estate Affidavit

For very small estates (usually personal property only), heirs can sign an affidavit to claim assets without any court involvement.

Summary Administration

A streamlined probate process with less court oversight. Available for estates below certain thresholds or after the deceased has been dead for a set period.

Affidavit of Heirship

In some states, heirs can sign an affidavit (often recorded with property records) to transfer real estate without probate.

Note: These procedures vary significantly by state. Check your state's specific rules.

When No Probate Is Needed at All

Sometimes, no probate is required because all assets pass outside it:

Scenario: Deceased had:

• Life insurance (beneficiary: spouse) ✓
• 401(k) (beneficiary: children) ✓
• Joint bank accounts with spouse ✓
• House owned jointly with spouse ✓
• Car titled jointly with spouse ✓

Result: Everything passes directly to beneficiaries. The will might still exist, but there's nothing for it to govern. No probate needed.

This is the result of good estate planning—arranging assets so they transfer automatically.

Living Trusts vs. Wills: Probate Comparison

Why living trusts avoid probate: Assets in a trust are technically owned by the trust, not the deceased person. When the person dies, the successor trustee distributes assets according to trust terms—no court needed.

Common Misconceptions

"I have a will, so my family won't have to deal with probate"

False. A will must go through probate. What a will does is ensure your wishes are followed (instead of state intestacy laws) and name your executor. It doesn't avoid the process.

"Probate is only necessary for large estates"

False. Estate size affects whether simplified procedures are available, but any assets that require probate require it regardless of value.

"My family can just take my stuff without probate"

Maybe, for personal items. But real estate, bank accounts, and titled property require legal authority to transfer. Without probate, no one has that authority.

"A will avoids family fighting"

Not necessarily. A will can be contested. Having a clear, properly executed will helps, but it doesn't prevent disputes.

How to Minimize Probate

If avoiding probate is important to you (or your family), consider these strategies:

1. Use Beneficiary Designations

Name beneficiaries on:

• Life insurance
• Retirement accounts
• Bank accounts (POD)
• Investment accounts (TOD)

2. Own Property Jointly

Joint tenancy with right of survivorship passes property automatically. Works for:

• Real estate
• Bank accounts
• Vehicles (in some states)

3. Create a Living Trust

Transfer major assets to a revocable living trust. You control them during life; they transfer without probate at death.

4. Use Transfer-on-Death Deeds

About 30 states allow TOD deeds for real estate—property transfers to named beneficiaries without probate.

5. Give Gifts During Life

Assets you give away before death aren't in your estate. Consider:

• Annual gift tax exclusion ($18,000 per person in 2024)
• Direct payments for education or medical expenses (unlimited)

Frequently Asked Questions

Does having a will speed up probate?

A clear, properly executed will makes probate smoother but doesn't necessarily make it faster. The timeline is driven by legal requirements (creditor periods, court schedules) that apply regardless.

What happens if I die without a will?

Your estate still goes through probate—it just takes longer because the court must determine who inherits (using state intestacy laws) and who will administer the estate.

Can a will be probated after the person has been dead for years?

Yes, in most states there's no deadline to open probate. However, some states have time limits for certain procedures. Assets may have become harder to locate or transfer over time.

If all my assets have beneficiaries, do I still need a will?

Yes. You should still have a will to:

• Handle any assets you forgot to designate
• Name a guardian for minor children
• Provide instructions for personal property
• Serve as a backup if beneficiaries predecease you

Can probate be avoided entirely?

Yes, with proper planning. If all your assets have beneficiary designations, are jointly owned, or are in a trust, there may be nothing that requires probate.

The Bottom Line

Having a will doesn't avoid probate—it ensures the probate process follows your wishes instead of default state laws. If avoiding probate is important to you, focus on beneficiary designations, joint ownership, and trusts rather than relying solely on a will.

Either way, if you're a beneficiary waiting for an estate to close, probate takes time. An inheritance advance can help if you need funds before the process completes.