In the vast majority of cases the answer to this question is NO.  Generally, having a Will chains your loved ones to the probate courts.  Depending upon the types of assets you own, assets that you own in your name and that do not have an alternative means to pass on to loved ones are considered “probate assets”, which means title to those assets will have to be determined in a probate case that determines whether your Will is valid and therefore enforceable, whether the person you named as Executor is qualified to serve, and whether your Will was ever revoked.

The only assets that are not required to go through the probate process are:

  • Assets held in a valid Trust established during your lifetime, or
  • Assets that will pass by contract between you and the custodian of the asset.  Those arrangements include:
    • beneficiary designations
    • transfer on death agreements
    • pay on death agreements,
    • or other similar ways to automatically cause those assets to pass without the need for intervention by the probate courts.

A majority of Americans who have Wills believe they have freed their families from probate.  Unlike trusts established during your lifetime, Wills are not what lawyers call “self-executing” documents. By definition, they are not enforceable simply because they exist. Wills are only capable of enforcement once a probate lawsuit has been filed in which a probate judge hears evidence about how the will was executed, determines whether the language of the document is sufficient to identify it as a valid Will, whether it was revoked during the lifetime of its maker, and whether or not the maker of the Will was of sound mind at the time the Will was signed.  Only when the probate judge has answered in favor of the Will on these and other key legal questions does a Will then become enforceable. And only then is an Executor appointed who finally has the authority to carry out the terms of the Will.