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February 11, 2020

Does a Will Protect My Property From Probate?

Unfortunately, Wills are not a legal instrument capable of protecting your property from probate administration. Learn more about instruments that can.

Does a Will Protect My Property From Probate?

The short answer: No. Most people don’t realize that giving property to a beneficiary through a Will exposes it to probate.

Probate occurs anytime property that is in the name of a deceased person is transferred.

In Missouri, the only ways to protect your property from going through probate court are:

(1) Have your assets in a Trust at the time of your death. These assets include personal property, real estate, and financial accounts. (essentially anything)

(2) In the case of real estate, you also have the option to execute a Beneficiary Deed. A Beneficiary Deed would allow your real estate to transition to a beneficiary/ies at the time of your passing (while not being subject to probate).

(3) Transfer on Death designations for specific financial accounts would also avoid probate.

All these options can be worth considering under the right circumstances; however, it is frequently the most straightforward and most advantageous to create a Revocable Living Trust. When your property is in a Revocable Living Trust, your benefit from and control of that property remains unchanged. However, technically that property is not owned by “you,” your Trust owns it. Thus, when you pass on, the property you transfer is not in the name of a deceased person. Instead, that property is owned by a distinct legal entity (your Trust), and any transfers made by that entity are not subject to probate.

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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