Wills, Probate, and Property

By Justin J. Wall, Esq.

Bar Licensed Trusts & Estates Attorney

Utah and Arizona

ESTATE PLANNING ESSENTIALS

When it comes to estate planning, one of the most common ways people pass on property is through a last will and testament. Wills are familiar and widely understood, at least on the surface. But the truth is, most people aren’t sure exactly how they work—or what really happens after someone passes away. One of the key things to understand about wills is that they don’t automatically transfer your assets when you die. Instead, they guide the probate court in how to distribute your estate.

In this post, part of our series on methods of transferring property at death, we’ll take a deep dive into wills and the probate process. We'll explore what a will does, how probate works, how to choose a personal representative, and when you might need a trust instead of (or in addition to) a will.

What Is a Will, and What Does It Do?

A last will and testament is a legal document that tells the court what to do with your property after you pass away. It’s your written instructions: who should receive your belongings, who should be in charge of wrapping up your affairs, and in some cases, who should be the guardian of your minor children.

But here’s the key point: a will doesn’t transfer property on its own. It doesn’t take effect automatically when you die. It tells the probate court what you want to happen. The court must first appoint the personal representative named in your will before anything can move forward. Until then, no one has legal authority to act. Once appointed, the personal representative handles debts, gathers assets, and transfers property—but none of that happens without first submitting the will to probate.

What Is Probate, and Why Is It Necessary?

Probate is the legal process for wrapping up a person’s estate after they die. It involves gathering assets, notifying creditors, paying off debts, and distributing what’s left to the rightful heirs or beneficiaries. If you leave a will, the court will generally follow its instructions—within the bounds of the law.

But let’s be honest: probate isn’t ideal. It’s slow, it’s public, and it invites delays. The process involves filing paperwork with the court, paying fees, and—perhaps most frustrating—waiting to see if anyone wants to challenge the estate or make a claim. Creditors (and others) are formally invited to step forward, which can tie up distributions for months.

And because probate is handled through the court system, your estate becomes a matter of public record. That means anyone can access information about what you owned, what it was worth, and who’s receiving it.

In short, probate is a court-supervised workaround for one unavoidable fact: your property can’t legally transfer until someone steps in to manage it—and gets the court’s approval to do so.

The Will’s Role in Probate

Your will acts as a set of instructions for the probate court. It tells the court three important things:

1. Who’s in charge (your personal representative)

2. Who gets what (your beneficiaries)

3. How property should be divided or held (outright distributions or trusts).

   
   

The court will look to your will to guide its decisions. But again, it’s the court that actually transfers the property. For example, if your will says your house should go to your daughter, the court has to approve that transfer. Only then can your daughter legally take title to the property.

Naming a Personal Representative: Choose Wisely

One of the most important decisions you make in your will is naming a personal representative—the person who will be in charge of handling your estate. This includes gathering your assets, paying off your debts, filing court documents, and making sure your beneficiaries get what you intended.

This is a financial role, not an emotional one. Your personal representative doesn’t need to be a financial expert, but they do need to be organized, responsible, and trustworthy. Think of this person as the CEO of your estate for a short time.

One Boss Is Better Than Three

It’s common for parents to want to treat all their children equally. I get it—no one wants to play favorites. But when it comes to naming a personal representative, it’s better to choose one person rather than trying to have all your children serve together.

Why? Because every personal representative has to sign every court document. So if you name three children to serve together, that’s three signatures needed for everything. If one of them is out of town or doesn’t respond quickly, it slows down the entire process. It can turn probate into a frustrating game of phone tag and FedEx.

A better solution is to name one child as your primary representative, and then list backups in case they can’t or don’t want to serve. For example:

• Jane (first choice)

• If Jane can’t serve, then Alex

• If Alex can’t serve, then Sam

  
  

This creates a clear chain of command while still giving everyone a role.

When a Will Is Enough… and When You Might Need a Trust

In some cases, a simple will may be enough—especially if your estate is small, you don’t own real estate, and your wishes are straightforward. But the reality is, most people who own a home are better off with a trust. In Utah, any real estate triggers probate. In Arizona, more than $100,000 in home equity puts you in probate, too. And even if you don’t hit those thresholds, there are still plenty of good reasons to choose a trust—like keeping your affairs private, avoiding delays, and simplifying things for your loved ones.

So while a will can work, it often isn’t the best or most efficient tool, especially for homeowners or anyone with more than modest assets. In many cases, a trust does a better job of keeping your estate out of court and in the hands of the people you’ve chosen.

Let’s look at a few situations where a trust may be more helpful:

1. You Own Real Estate

In both Utah and Arizona, owning real estate means your Will is likely to put you through probate.

• In Utah, owning any real estate triggers probate.

  
  

• In Arizona, probate is triggered if you own more than $100,000 in home equity.

  
  

So if you’re a homeowner, even if you have a will, your estate will likely go through probate unless your property is in a trust or otherwise transferred outside of probate.

2. You Have Significant Non-Real Estate Assets

The same goes for other assets:

• In Utah, probate kicks in if you have more than $100,000 in total assets to transfer.

  
  

• In Arizona, the threshold is $75,000.

  
  

So again, if your bank accounts, business interests or investment accounts add up to more than that and they’re not already transferred outside of probate, then your estate isn't likely to avoid probate.

Beneficiary Structures: Outright or in Trust?

Wills typically distribute property outright—meaning each beneficiary gets their share, and that’s it. For many families, that’s perfectly fine. Your adult children inherit, they take responsibility, and the estate is done.

But there are times when a more structured approach makes sense.

Will vs. Living Trust: A Quick Comparison

When you're planning how to pass on your assets, one of the biggest decisions is whether to use a will or a living trust—or both. While both tools can direct who gets what after you’re gone, they work very differently when it comes to court involvement, privacy, and timing. Below is a side-by-side comparison to help you understand the key differences and why many families choose a trust-based plan, even when they still need a will for certain legal purposes.

Will vs. Living Trust: What’s the Difference?

Feature	Will Only	Living Trust
Goes through probate?	Yes	No (if properly funded)
Public record?	Yes (probate is public)	No (private administration)
Names guardian for children?	Yes	No — but a trust plan will include a will for this
Controls real estate?	Yes, but only through probate	Yes, directly and privately
Can delay/control inheritance?	Not without a separate trust	Yes, if trust terms provide for it
Helps avoid court involvement?	No	Yes
Effective immediately?	No — only after death and probate	Yes — can operate during lifetime and after death
Allows for incapacity planning?	No	Yes — successor trustee can step in if you're incapacitated
Includes asset protection options?	Not built-in	Yes — can include basic protections with proper terms
Can be changed/revoked?	Yes	Yes — if it's a revocable trust

Note: A trust-based estate plan typically includes a pour-over will, which names guardians for minor children and ensures that any assets not titled in the trust are still directed into it through probate. Even with a trust, you still need a will—just not as the main tool for distributing your estate.

So, Do You Need a Will or a Trust?

It depends on your situation. For many people, a simple will is enough, especially if your estate is small, your beneficiaries are adults, and you’re not worried about court oversight.

But if you:

• Own real estate

• Have total assets over the probate threshold

• Want to keep things private

• Need to structure how (or when) your beneficiaries receive assets

• Have a special needs child or other unique concerns

  
  

…then you may want to consider a revocable living trust.

Final Thoughts: Why Probate Isn’t the Enemy

A lot of estate planning talk these days focuses on avoiding probate. And while that’s a worthy goal in many cases, it’s important not to paint probate as the villain.

Probate exists for a reason: it ensures that your property goes to the right people, your debts are paid, and everything is done legally. It gives your family a formal, court-supervised process to wrap things up.

The key is knowing what to expect—and planning accordingly. If you decide to use a will, make sure it’s well-drafted, clearly names a personal representative, and considers whether any parts of your estate should be held in trust.

And if your situation calls for more complexity, don’t hesitate to seek help from an estate planning attorney. You don’t have to figure this out alone.

Need Help With Your Will or Trust?

Whether you’re starting from scratch or reviewing an old plan, I’d be happy to help you figure out the right strategy for your situation. Let’s make sure your estate plan works the way you want it to—and brings peace of mind to you and your loved ones.