Will a will prevent probate? A surprisingly common misconception is the idea that having a valid will in place prevents one's estate from going through the probate process. In fact, leaving property to your loved ones via a last will and testament guarantees that at least a part of your estate will have to go through probate. Probate is the process of authenticating a will (if one exists) and distributing assets according to its terms.
What having a will does prevent is an estate being distributed according to Ohio's intestacy laws. These laws are intended to distribute the property of a deceased when there is no will or other valid estate plan. Intestacy laws try to approximate what most people would do with their property had they had an estate plan. Typically, people would provide first for their spouse and children, and then for more distant relatives. Like other laws that are intended to cover a wide range of people, intestacy laws often get things mostly right, but sometimes get them terribly wrong.
So, even though having a will doesn't prevent your estate from having to go through probate, it does serve a very important purpose: making your own wishes clear about whom you want to inherit your property, and naming a guardian for your minor children if you have any. If avoiding probate is important to you, however, your estate planning will need to go a little further.
One of the most common ways to bypass the probate court is by using a revocable living trust, often just called a "living trust." During your lifetime, you act as trustee and continue to use and control your property that's held in the trust just as you always have. If you are married, you and your spouse can both manage and benefit from the trust. As the name suggests, you can revoke the trust at any time before you die or become incapacitated.
After your death, a successor trustee manages trust assets according to the terms you put in the trust document that you created with your estate planning attorney. You can plan for immediate distribution of assets upon your death, or allow the trustee to make distributions when your kids or other heirs reach a certain age or milestone. Not only do assets held in the trust pass completely outside of probate, but you also exercise greater control over them, even after you're gone.
Living trusts are relatively straightforward, but you should still have the guidance of an experienced estate planning attorney to make sure that your trust is properly created and funded. If you don't fund your trust, you might as well not have one at all.
You may already have taken some steps to avoid the probate process, even without knowing it or intending to. If you have a joint bank account with a spouse, for instance, the funds in the account will automatically pass to your surviving spouse upon your death if the document creating the account provided for a right of survivorship. Similarly, if you own your house as joint tenants with right of survivorship (JTWROS) with your spouse or another family member, your interest in the property will automatically pass to that person if you die and they survive you. Transfer-on-death accounts are also a way to streamline the transfer of property outside of probate. Obviously, this does not avoid probate if the joint tenant or designated beneficiary dies before you or is incapacitated.
Avoiding probate is often desirable, but in some circumstances there may be good reasons for your estate to go through the probate process. As noted above, a one-size-fits-all approach rarely fits everyone perfectly. Speak to an experienced Ohio probate and estate planning lawyer to learn the best way for you to transfer your assets.