Most people work with an attorney to compose a last will and testament. The primary purpose of this legal document is to provide instructions for the disposition of a person’s property following their death. Probate is the court-supervised process of inventorying all a decedent’s assets and distributing them to creditors and inheritors. However, not all property is subject to disposition by a will or the probate process.
Why Try to Avoid Probate?
Most estates are small, uncontested and generally uncomplicated. One would think that administering such an estate would be quick and straightforward, but that’s not always the case. Probate is often a lengthy process that ties up a decedent’s assets and can become quite costly due to attorney’s fees and court fees. For these reasons, most people take steps to minimize the property that must go through probate or work with an estate planning attorney or an elder law attorney to ensure their estate avoids probate entirely.
Assets That Don’t Need to Go Through Probate
There are several ways in which assets can be handled to avoid probate and pass directly to chosen beneficiaries. Most life insurance and annuity contracts name a non-estate beneficiary that is paid directly upon receipt of a death claim (this is called operation of law or contract). The same holds true for many brokerage accounts and retirement accounts like IRAs and 401(k)s. Bank accounts that have payable on death (POD) or transfer on death (TOD) provisions are considered non-probate assets and pass directly to a named beneficiary as well.
Joint accounts will usually pass to the other surviving owner(s) sans probate. Assets titled in revocable inter vivos trust agreements (also known as revocable living trusts) are administered and disposed of by successor trustees named in the trust documents.
Real property (land and buildings) may also be titled to pass to an heir thereby avoiding probate. A certain type of property ownership called joint tenancy with rights of survivorship (JTWROS) is a popular option for ensuring an owner’s stake in an asset, such as a home, passes directly to the surviving co-owner(s) after their death. Some states even allow the transfer of real estate with a TOD designation to a beneficiary.
Assets That Must Go Through Probate
Any property or assets that have only the decedent’s name on the title at time of death must go through probate. Only the probate court can change these titles according to the specifications laid out in the decedent’s will. For example, a home, car or bank account owned solely by the decedent cannot bypass probate. Even assets that are co-owned may be subject to the probate process if the nature of ownership does not include the right of survivorship.
In short, anything that does not go directly to a beneficiary will be subject to disposal per the deceased’s will. All wills, as well as assets that do not pass by operation of law or contract, are subject to probate. Once the will has been probated and assets have been distributed to the rightful creditors and beneficiaries, you can do whatever you want with them.