One of the most common misconceptions in estate planning is that a will avoids family members having to go to court. In reality, a will does the opposite—it ensures that a probate court case will be required.

What a Will Actually Does

A will is a legal document that outlines how a person’s assets should be distributed upon death. It may also designate guardians for minor children and name an executor to manage the estate. However, a will has no legal effect until it goes through the probate court process.

In other words, a will is essentially a set of instructions to the court.

Once the individual passes away, the will must be submitted to probate, where the court:

  • Verifies the validity of the document
  • Appoints the executor
  • Oversees the payment of debts and taxes
  • Supervises the distribution of assets

Without probate, the will cannot be enforced.

Why Probate Is Required with a Will

Probate serves as the legal mechanism to transfer ownership of assets titled in the decedent’s name alone. Even with a properly drafted will, assets that do not have a designated beneficiary or joint ownership must pass through probate.

This includes:

  • Individually owned real estate
  • Bank accounts without payable-on-death (POD) designations
  • Personal property
  • Investment accounts lacking transfer-on-death (TOD) instructions

The will does not bypass this process—it directs it.

The Downsides of Probate

While probate is a necessary legal process in many cases, it has some drawbacks that clients often wish to avoid:

  • Time-consuming: Probate can take months or even years to complete
  • Costly: Court fees, attorney fees, and administrative expenses can reduce the estate’s value
  • Public record: Probate proceedings are generally public records
  • Potential for disputes: Heirs and creditors may challenge the will or file claims

Because of these factors, many clients are better served by strategies designed to minimize or avoid probate altogether.

Conclusion

A will remains a foundational estate planning document, but it should not be misunderstood. Rather than avoiding probate, a will ensures that probate takes place under the decedent’s instructions.

For clients seeking to bypass probate, additional planning is not optional—it is essential.

Attorneys who take the time to explain this distinction provide not only legal guidance, but meaningful peace of mind.