What does a Will do and how do you avoid probate?

A Will allows the person creating it — the Testator (a man who creates a Will) or Testatrix (a woman who creates a Will) to: 1) identify the person, referred to as the “Personal Representative”,(I recommend naming at least two people – the first appointee and then a back-up (Successor) who will pay any last bills, collect any claims, pay debts and file lawsuits if necessary and ensure the instructions in the Will are carried out; 2) provide instructions about how assets are to be distributed – for example, “first to my spouse, and if he/she dies before I do, then in equal shares to my children”; 3) nominate a guardian for any minor or disabled children and 4) create a “Personal Property List” that allows the Testator/Testatrix to list personal or sentimental items to be given by the Personal Representative to the person identified to receive the item (i.e, your black velvet painting of Elvis).

HOWEVER, creating a Will is just the first step to avoiding having your assets supervised for distribution through the Probate Court. Once a Will is created, beneficiary designations must be made for all assets — bank accounts and certificates of deposit (CDs) should have “Pay Upon Death” designations, securities, including stocks, bonds and mutual funds should have a “Transfer Upon Death” designations; U.S. savings bonds have forms for naming beneficiaries. Life-insurance, retirement accounts and IRAs have forms enabling beneficiaries to be named. Real estate should have beneficiary, or lady bird deeds or deeds that name joint owners who will inherit by survivorship created and filed with the Recorder of Deeds office. A beneficiary can be a person, a trust, charity or other entity. The key is to make sure all assets have some type of designation that identifies who is to inherit the asset and that such designation is consistent with one’s Will — inconsistencies between beneficiary designations and instructions in a Will can cause enormous problems, hurt feelings, and end up landing one’s estate in probate to have such inconsistencies sorted out.

Although there are many websites, downloadable forms and resources for creating a Will, it is advisable to see an attorney to ensure that your wishes are reflected in your Will in such a way that they will be carried out, to find out the options you have for distribution of your estate and how to handle sticky or difficult situations — such as leaving assets for the benefit of a disabled child; how to ensure that if a child dies before you, that his/her share will go to who you want to receive it and answer questions you may have and not even know to ask.


Debra K. Schuster, M.H.A., J.D.
Debra K. Schuster, P.C.
St. Louis, Missouri

About Wills and Avoiding Probate was last modified: May 3rd, 2018 by Debra Schuster