How Will Your Estate Be Probated?

Law Blog

Part of estate planning involves planning for probate. Unless an estate is too small, nearly every single adult that passes away in the US will leave behind an estate that must go through probate. To find out what might be part of your probate and what might skip it, read on.

What is Probate?

Ever since people have died leaving behind bills, probate has existed. Probate is the legal means of combing through an estate, meaning its debts and its assets, and settling everything once and for all. Probate involves an orderly, state-mandated approach to parsing property to beneficiaries after assuring that the estate doesn't owe anyone any money. It also directs executors or personal representatives to keep estate property safe while the state determines the value of the estate. After all, large estates can be subject to taxation for the beneficiaries.

What Doesn't Pass Through Probate?

All the below forms of property can be left out of probate. That means they are not part of the public record dealing with the death and the survivors don't have to wait for probate to be complete to get their inheritances.

  • Jointly held property — Homes and other assets owned by a surviving spouse or others named on titles and deeds are exempt from probate. For example, deeds can be changed to include beneficiaries' names so that the property passes automatically to them after death.
  • Property With Designations — Bank and investment accounts can be passed directly to beneficiaries by performing a payable-on-death or transfer-on-death designation. This can be done by completing a simple form at the banking or brokerage institution. A death certificate and identification are needed to obtain ownership of the account. More than one person can be listed as beneficiaries of the account and then the funds in the accounts are disbursed in equal portions to each beneficiary.
  • Trusts — This way of dealing with estate assets is becoming increasingly popular for several reasons. Any property addressed in a trust is exempt from probate, even if that property is specifically addressed in the will. Also, trusts are private and more flexible than a will. Trusts may be either revocable or irrevocable. As with a will and executors, trusts have a trustee to oversee the trust after the owner has passed away.

While probate might be inevitable for many, that doesn't mean you cannot simplify things by dealing with at least some of your property in other ways that make things easier for your loved one. By all means, make out a will but speak to an estate planning attorney about using some of the handy methods above as well.

For more information, contact an estate planning attorney near you.


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Business Law Basics: What Small Business Owners Need to Know

When I started my first small business, I had no idea how much I really didn’t know. I was fully prepared to deal with customers, sell product and even handle complaints and returns. What I wasn’t aware of was that there is so much more to it. I was lacking the legal expertise to protect the company and myself. I wanted others to benefit from my experience, mistakes and lessons learned, so I started this blog. From employment law to the legal business contracts you’ll have to sign when you form partnerships, business law is complex. I hope that the information here will help you to be better prepared when you start your business so that you’ll know when you need to call an attorney and when you can handle things yourself.