Today, probate has a bad reputation when it really shouldn’t. It is often reiterated that it is something you want to avoid. As such, many individuals specifically try to avoid probate when beginning the estate planning process. But in some situations, probate cannot be avoided. Often, it is because the process is needed. And needing probate is not a bad thing, making the process one should not focus on avoiding at all costs.
When probate is necessary
Probate is a formal process to pass assets from a deceased individual to their heirs. In other words, it is a proceeding that is supervised by the court that retitles an asset from the decedent to their heirs. This process is necessitated when the assets and property of the decedent are not transferred to their heirs by a trust, contract law or state titling laws.
When a will is present and valid, the assets and property awarded to heirs will need to go through probate. This often includes household goods, automobiles and other property that was not awarded to anyone in their will but still need to be transferred.
When an individual dies intestate, which is without a will, any property that was owned by that person and does not have a beneficiary designation will need to go through probate.
What doesn’t go through probate?
As stated above, there are certain situations where probate is not necessary. Trust law, contract law and state property title law apply in a wide range of situations. This often includes retirement funds that have a named beneficiary, life insurance policies with a named beneficiaries, annuities with named beneficiaries, pay-on-death accounts, transfer-on-death accounts, property held in joint tenancy with rights of survivorship, property held as tenancy by the entirety and all property contained in a trust.
Administering an estate often means initiating and moving forward with the probate process. Whether or not steps were taken to help avoid the probate process for your heirs, probate should not be considered a bad thing. Because it is often necessary, it is important to understand its role and how to move the process along. And if any issues arise, seeking legal guidance could help you protect your rights and interests while resolving the matter.
