On July 11, 2016

When wills can (and can’t) be used to avoid probate

When wills can (and can’t) be used to avoid probate

It depends. That’s the short answer because whether (or not) a will can help your loved ones avoid probate in the future will depend on a number of different factors, only some of which include:

  • Whether you execute a valid will
  • Whether your will is up-to-date upon your passing (i.e. whether your will covers or includes plans for all of your property)
  • The scope and nature of your estate.

To unpack this answer a bit more, the following explains how and when a will can (versus cannot) be used to avoid probate.

Please be aware, however, that the information contained herein has been purposely generalized (in order to be as widely applicable as possible). When you are ready to receive answers specific to your situation and needs, please call a Denver estate & probate attorney at JR Phillips & Associates, PC.

Avoiding Probate: When Wills Can Be Used to Avoid Probate in Colorado

In general, a will can be used to help avoid probate if or when additional estate planning devices (like the following) have been put in place (either as part of the terms of the will or independently, outside of the will):

  • PODs or TODs – These ‘payable-on-death’ or ‘transfer-on-death’ designations allow you to name a specific beneficiary (or a few beneficiaries) to directly (and immediately) take possession of certain assets upon your passing. Bank accounts funds, vehicles, stocks, bonds and other assets can have these designations. And when you have specified a beneficiary for assets with a POD or TOD designation, those assets will NOT have to pass through probate.
  • Trusts – Any assets held by a trust will also not have to pass through probate. In fact, when you transfer assets to a trust (either during your life time or via your will/upon your passing), those assets will essentially be owned and managed by the trust. Consequently, this can be a very effective way to reserve certain assets for specific beneficiaries – and to make sure your beneficiaries have access to them regardless of whether other aspects of your estate may have to be probated.
  • Business succession plans – If you own even just part of a business, making succession plans that detail how your business holdings should be distributed upon your death can be integral to ensuring these assets also don’t have to pass through probate.

Here, it’s important to note that you do not have to make special plans for jointly held property. That property will usually go to the surviving owner after you pass; if, however, the other joint owner passes away before you do, then you will be the sole owner, meaning that you will need to make special plans if you don’t want that property to be probated later.

When Wills Cannot Be Used to Avoid Probate

A will alone will NOT typically be effective for helping your loved ones avoid probate if or when:

  • The will hasn’t been properly executed.
  • The will doesn’t provide distribution plans for some (or any) property you own solely.
  • There are multiple versions of the will in circulation, and there are questions about which version is the most recent.
  • Any of your beneficiaries raises a will contest following your death.

Need More Answers about Wills & Probate? Contact a Denver Probate Attorney at JR Phillips & Associates, PC

To find out more about your best options for helping your loved ones avoid (or minimize their obligations related to) probate in Colorado, contact a trusted Denver probate attorney at JR Phillips & Associates, PC.

We are ready to help you devise the best estate planning solutions for you so you can be sure that your loved ones and legacy are protected in the future. Known for our experience, personal service and affordable rates, we provide both estate planning services and representation in Colorado probate.

To discuss your needs and discover how we can help you, call us at (303) 741-2400 or email us using the contact form at the top of this page.

Categories: Estate Planning, Probate, Probate Litigation, Trusts, Will Contests