Why a Will Must Be Probated

A Will Is Not Self-Executing

One of the most common misunderstandings is the belief that a will automatically transfers property when a person dies. It does not. A will must go through the probate process to have legal effect. That means either a formal probate adjudication by the court or an informal probate statement issued by the registrar.

Without this validation, title companies, banks, and financial institutions will not recognize the will as authority to transfer assets. Bank accounts, retirement accounts, and real property all require proof that the will has been probated. The personal representative named in the will cannot act until the court or registrar confirms the will's validity.

The Limited Exception

There is one narrow exception. A will that has not been probated can still be admitted as evidence of a devise if two conditions are met. No court proceeding about the estate has occurred, and the devisee already possessed the property as described in the will.

This exception is uncommon. In practice, most families need to go through formal or informal probate. Titled assets like real property, vehicles, and bank accounts require a court order or registrar statement before they can change hands.

What This Means for Families

If a person dies with only a will, their family must open a probate case to transfer personal property and real property. Payable on death (POD) accounts and retirement accounts with named beneficiaries pass outside probate. But assets titled only in the deceased person's name require court involvement.

For families who want to avoid this process, a small estate affidavit may work if the estate is small enough. Otherwise, a revocable living trust transfers property outside of probate with no court involvement required.