Having a will does not avoid probate

I often meet with people who want to create a will in order to avoid probate. Therefore, I feel it is important to clear up the misconception that a will avoids probate. It does not. It can simplify probate and make your wishes known but it does not avoid probate.

When people tell me that they want to avoid probate I first tell them that, under many circumstances, probate is not always the nightmare that many people feel it is. However, even under the best of circumstances it does cause a delay as to when your executor can access your property in the event of your death. Any property that you own solely in your own name will pass according to your will in the event of probate and, for your appointed executor to access that property, he or she needs to obtain a certificate of appointment from the probate court. This can take 4-6 weeks in many cases and often, especially in New Hampshire, requires that executor to obtain a surety bond which can cost several hundred dollars.

Although any properly drafted will, in most cases, should state that the executor does not need to post surety on his or her bond (especially if that person is a trusted family member), New Hampshire requires a surety bond unless the appointed executor and sole heir and/or legatee is a surviving spouse, an only child or the trustee of a living trust. If this is not the case, a surety bond will most often be required creating additional cost and delay.

When I speak with clients who want to avoid probate, own real estate in more than one state or want to have a trusted individual control an heirs access to his or her inheritance, I often suggest a living revocable trust. This has the advantage of avoiding probate while still allowing you to control the property as if you owned it individually. If this sounds like something that is right for you, please contact me today for a free consultation and remember, I make house calls and am available on many evenings or weekends.