Will I Need to Probate?
To understand if probate is needed, it’s best to have a basic understanding of what probate is, the process, and what a probate and non-probate asset is. I’ve explained these a few weeks ago in a short article, that can be found here. If you’re reading this there are chances that you have either lost a loved one and trying to gain some background on the probate process or perhaps you’re thinking about your own estate and how you could plan.
Does everyone need to probate an estate? The answer to this is no. Not every estate is required to be probated, especially if they have an effective estate plan in place.
Generally, an estate does not need to be probated if all that it holds are non-probate assets that pass to their respective beneficiaries by right of survivorship, by payable on death designations, or through a trust agreement. Anything outside of these categories may be considered a probate asset and may require some form of probate or legal document to transfer the asset. An estate planning attorney can assist and guide you through the proper form of probate for the estate.
When speaking to an estate planning attorney, it is important to discuss all of the assets held in your name, so they can help craft the best plan for you and your loved ones. One of the simplest things to do is to make sure you have beneficiaries on all financial accounts and insurance policies. Check these periodically to make sure that your beneficiaries listed still reflects your wishes. This is especially important because your beneficiary designations trump any wishes in your will. For example, if the beneficiary on your bank account is your daughter, but your will says the bank account will go to your son, the bank account will go to your daughter.
Some other typical probate assets such as real property, can be transferred upon your death by having your attorney prepare a Transfer on Death Deed or Lady Bird Deed. This is a simple, cost effective way to have your property pass to your loved ones without the need of probate after your passing. These deeds can be changed during your lifetime and you retain your rights to your property. To be effective, these deeds must be recorded in the county the real property is located in prior to the death of the grantor.
Together with your beneficiary designations and estate planning documents, you and your attorney can create an effective estate plan so that your loved ones will have access to your assets without the additional stress of probate.
The information contained in this post is provided for informational purposes only, and should not be construed as offering legal advice, or creating an attorney client relationship.
