Can I Skip Probate If I Have A Will?

Contributor: Jesse Maier

As an estate planning attorney, one of the most frequent questions I get goes a little something like this, “My [father, brother, sibling] had a will leaving everything to his family, so can we skip probate?” The answer to this question is no. Thanks for tuning in, and see you next week.

Okay, a little more explanation is necessary. In North Dakota and Minnesota, if you have a will (and you have done no other estate planning), your estate will go through the probate process upon your death. An easy way to visualize this is to think of a will as an instruction sheet for what is supposed to happen to your estate upon your death. The person in charge of your estate (personal representative) will use the instruction sheet and the Court’s guidance to go through probate. So, why do so many people have the misconception that a will skips probate?

I think the largest reason for this misconception is that many of the probates that make the news have to do with situations where the deceased did not have a will. These types of probate are called intestate (without a will) probates. In intestate probates, the court will use a law called the law of intestate succession to determine who is to receive the deceased’s assets and in what amounts. Remember Mr. Deeds?

The question then becomes, “Is there any value in having a will if I have to go through probate anyway?” The thing to keep in mind is that while having a will and not having one will both result in probate, the value of a will is that you have the last say in what happens to your estate. Also, keep in mind we are not just talking about potential inheritance, but also who would be the guardian of your minor children, who is to be a custodian of property for any minors, and who is to be in charge of paying your final bills. In addition, a will gives you the flexibility to “upgrade” your estate plan in the future to achieve any of your objectives (forming a trust, avoiding probate, providing for your family).

While it is a misconception that a will avoids the probate process, a will is still an extremely valuable estate planning tool. If you do not already have a will, contact our office and let us help you see the value in a comprehensive estate plan.

If you have any questions regarding estate planning, give us a call at 701-297-2890 or email us below.

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