Most people work with an attorney when composing their last will. These legal documents provide instructions for the disposition of property after the death of a loved one. This can be overseen by a court-supervised process of inventorying and distributing the deceased’s assets. They will then be distributed to creditors and inheritors. However, even with a valid last will, your estate is still subjected to the probate process.
Why You Might Want To Avoid Probate
Many estates are small and often uncomplicated. One would think administering an estate would be a rapid and straightforward process, but unfortunately, this is rarely the case. Probate is a lengthy process and is only made more of an issue when factoring in attorney and court fees. With the time and money probate requires, most people will take steps to ensure they can minimize the amount of property that goes through probate. Some can even go as far as to avoid probate entirely with the help of an elder law attorney.
Assets That Don’t Need Probate
There are many ways in which assets can avoid probate entirely. Most life insurance policies have a non-estate beneficiary paid directly upon receiving a death claim. This also applies to banks with pay on death (POD) or transfer-on-death (TOD) provisions. These accounts are considered non-probate assets and pass directly to the beneficiary.
Joint accounts will usually pass on to the surviving owners. Any assets titled in a revocable trust will be administered and disposed of by the successor trustee named in trust documents.
Any real property may also be titled to pass directly to an heir avoiding the probate process. One can also have joint tenancy (JTWROS) and pass on property to the surviving owner. Some states even allow for a transfer of real estate with a TOD designation.
Assets that Require Probate
Any property or assets that only have the decedent’s name on the title at the time of death must go through probate. Only the probate court can change these titles according to the specifications laid out in the will. Homes, cars, and bank accounts owned by only the decedent cannot bypass probate. This even applies to assets that are co-owned but do not include rights of survivorship.
In short, assets that do not go directly to the beneficiary will be subjected to the deceased’s will. Wills do not surpass the operation of law and are subject to probate. Once these assets have been distributed, your beneficiaries can do whatever they want with them.
The best way to protect yourself and your family is to contact your local elder law attorney. They will make sure you have the best plan for your future.