October 2022.

Q: Don’t I need a will to avoid probate?
A: Thanks for asking! But wills don’t avoid probate; they CONTROL probate. Anything just in your name when you die, that doesn’t have a living joint owner or beneficiary, passes through probate. Probate is the orderly way we get the stuff deceased people leave behind to living people. If you don’t have a will, your stuff will pass by “intestacy” (a Latin word for “without a will”) to the people the State assumes you’d want to have it. The State’s assumption is sometimes a problem. I’m working on an estate now where the person died without a will, and the house where he and his wife lived was just in his name. The intestate law gives part of the house to his kids, so his wife is having to buy out his kids so she can stay in the house. I worked on another estate recently where the house was in his name, and he and his partner had lived there for nearly 50 years. When he died without a will, the house went all to his kids because he and his partner were not married, and his kids whom he hadn’t seen in decades wasted no time in kicking “that woman” out of “their inheritance” and selling the place. So, you at least need a will to control where things go. If you want to avoid probate AND control where your stuff goes, make sure you have beneficiaries on your assets, and that they are titled correctly.

Q: Don’t I need a trust to avoid probate?
A: Not really. You can avoid probate by making sure everything has a beneficiary or is correctly titled. Trusts are mostly to hold money for people that shouldn’t have it right away, so if the people who are going to get your stuff can have it right away when you pass, you usually don’t need a trust. But you do need a will, in case something doesn’t have a beneficiary; and you should probably also have a power of attorney so someone can pay your bills if you can’t; and a medical directive so someone can direct your medical care if you are unable to do so for yourself.


Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771

 (301) 829-3778

Wills & Trusts | Estate Planning | Probates & Estates
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