Reasons Why Families Have to Go Through Probate

Historically, the term “Probate” exclusively meant the act of proving a Will’s validity. Now it has a much more general meaning, commonly referring to the process that is used to administer a deceased person’s estate, regardless if that person left behind a Will. Probate can be an expensive lengthy process, lasting anywhere from six months to a few years, depending on the complexity of the Estate and the court it is filed in.

Reasons Why Probate is Necessary

1. No Trust or Will: If the deceased did not leave behind any estate planning, then the probate process is used to determine who the beneficiaries are and how the assets should be titled and distributed.
2. There is a Will: If the deceased left behind a Will clearly stating the beneficiaries, the estate must then go through the probate process in order to transfer the property to the deceased’s beneficiaries.
3. Assets in Deceased’s Name: Probate is always required when a deceased person’s estate contains assets that are solely in the deceased’s name.
4. No Beneficiaries Named: If the deceased did not name beneficiaries on assets like bank accounts, retirement plans, life insurance policies, etc., the accounts must pass through probate in order to transfer the funds or titles to those accounts.
5. Joint Tenancy: If the deceased jointly owned property with another person, that property must go through probate to remove the deceased’s name from the title.

Preventing Probate

Luckily, there are steps you can take to help your family avoid probate. Avoiding probate will relieve your loved ones of undue stress during what will already be an emotional time.

1. Living Trust: A living trust is an entity created during your lifetime to hold assets, for the purpose of distributing them after your death. Unlike a Will, living trusts are not subject to the legally lengthy and often expensive probate process.
2. Title Assets with Rights of Survivorship: Assets that are owned jointly with right of survivorship will pass directly to the surviving owner and avoid probate. This is a common way for married couples to hold title to real property and bank accounts.
3. Beneficiary Designation: Many financial institutions and life insurance policies allow you to designate beneficiaries of your account(s) while you are still alive. After your death, the account passes directly to the beneficiary you designated and avoids probate.

Do you need Probate?

Probate gets a bad rap because it can be expensive, stressful, and time consuming. The good news is that there are ways to set up your estate to avoid probate as much as possible. If a family member of yours has recently passed, or if you want to learn more about how your family can avoid probate upon your passing, consider meeting with an estate planning lawyer.