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Leaders in Family Matters

Legal Myths That Persist – Do Will’s Avoid Probate? Short Answer: No.


I am often confronted with this myth by my clients. It seems to have a hold on the collective consciousness, and it appears that misinformation has been handed down to current generations. The myth I speak of is the misunderstanding that a Will, a Last Will and Testament, avoids a probate process. The very simple and short answer is that in the State of Nevada, it does not – plain and simple.

A Will is a document of intent. It does not have powers to transfer assets like a Trustee of a Trust, or Agent under Financial Power of Attorney. A Will, will generally provide direction of where assets are to be transferred, but does not have the power to transfer the asset.

I often advise clients that the power to transfer an asset is a personal property right that is afforded to all property owners, owning property in the United States. For example, during your life, you have the power to purchase real estate, sell real estate, buy cars, transfer titles of vehicles, open bank accounts, close bank accounts, transfer funds between bank accounts, etc. However, a personal right is just that, personal. It dies with you. Thus, if all you have is a Will, and you die (which I am sorry to say, that is the one guarantee in life), your assets held by you will need to be plead into a probate matter and your intent under your Will be proven up by lodging said Last Will and Testament with the Probate Court. The Probate Court becomes the official “transfer after death” mechanism. So, while your rights die with you, the Probate Court will transfer your assets after you die, pursuant to your last wishes, so long as they are in a valid Will. A valid Will is one which meets all the requirements of Nevada law.

To avoid this, and the costly expenses of probate, which are open to the public, time consuming and difficult to navigate, in Nevada we create a Trust. A Trust is a separate legal entity, and the Trustee of the Trust is allocated the powers of transfer that you had during your lifetime. A Trust lives on past your death and the Successor Trustee of the Trust (that you elect) is then able to transfer the assets for you and is a fiduciary of your estate (meaning the Trustee – in most circumstances – cannot do what they want to do if the proposed actions violate the terms of your Trust).

If you want to make it easy on your family, simple answer is – do a Trust. Do not use LegalZoom or other paralegal services. You should understand what your Trust is, how it works and its pros and cons. Neither LegalZoom nor a paralegal can give this advice. Knowledge is power, not knowing or understanding a Trust puts one at a great risk of the Trust not working or failing to fulfill its purpose.