If you ask most individuals to describe the function of a will, chances are the majority will be able to at least state that it is a document used to transfer property upon one’s passing. Ask those same individuals to describe “probate” and you will you most likely be met with an inquisitive stare. The truth of the matter is that probate is nothing more than the court-supervised process of gathering someone’s assets; paying taxes, claims, and expenses; and then distributing those assets in accordance with the decedent’s Will. In other words, probate is the vehicle by which a Will is validated and then utilized.
One common misconception about probate is that it is required for everyone. In actuality, any asset or property that is jointly titled or that has a beneficiary already designated can pass outside of probate. Some examples include:
• Land that is jointly owned;
• Bank accounts that are labeled as “payable on death” or “in trust for”;
• Life insurance policies with a designated beneficiary;
• Pension and retirements accounts; and
One of the benefits of working with a skilled estate planner is that careful planning can obviate the need for probate altogether which in turn saves one’s heirs significant time and money. With that being said, even if it looks as though probate can be bypassed, it is always advisable to still have a valid, recently updated will.
No matter how carefully an individual plans, there is always a chance that probate still becomes necessary. The most common scenario occurs when a client inherits property either after they have become incapacitated, or after they have passed away. Because there was not time to designate a beneficiary, probate will become necessary and an individual will want the assurance that the recently gained property will be distributed according to their wishes. Although probate law has default provisions as to how property will be distributed absent a will, such statutes do not express the wishes of all individuals as they do not account for devises to friends, long-term companions, same-sex partners, or estranged family members.
With the help of a qualified attorney any individual can painlessly develop an estate plan that best meets their needs. If you have any questions about the probate process, or about estate planning in general, contact our office and schedule a consultation today.