Estate Planning Starts With A Living Will
In short, a will is a legal document intended to coordinate the wishes regarding the distribution of a person’s wealth, property, and the care of dependents, e.g. minor children. It is advisable to work closely with an estate planning attorney to create and update your will.
A will allows you to state who you would like to inherit your property or to nominate a preferred guardian to care for minor children in the event of your death or incapacity. But a will does not avoid the probate process. Assets titled in your name or guided by your will must still go through your state’s probate course of action before distribution to your heirs. (probate law varies from state to state, if you own property in multiple states your family or heirs will encounter multiple probate processes) The probate process can become very expensive due to court costs and legal fees. On average the process can take six to nine months to complete and probate filings are open to the public, allowing excluded heirs to step forward in order to pursue a claim to your estate.
In brief, the state court system, not your heirs, has primary control over the process.
But not everything you own will require going through the probate process. Jointly owned assets or property that allow you to identify a beneficiary such as life insurance, IRAs, 401k’s, annuities, etc. are not controlled by your will and generally transfer ownership to a new beneficiary without probate.
However, there are problems that may arise with joint ownership and probate avoidance is not guaranteed. If, for example, a valid beneficiary is not named, your assets will still have to undergo the probate process like the rest of your estate or if a minor is named a beneficiary, the court will most likely contend that a guardianship is required until the child becomes a legal adult.