Joe Weyant“Do You Have a Probate Estate?”
Types of WillsFirst of all, just because the deceased person left a Will doesn’t mean that Will must be presented to a court for the probate process. By way of example, it is quite common with married couples to do what are called “mirror wills.” This is where each spouse leaves their property to the other spouse first. The alternative beneficiaries are usually the children. Upon the death of the first spouse, there likely is no need for probate. The reason for this is that the couple’s property is most often owned jointly, in both names.
By operation of law, there is no real change to this ownership, simply because of the death of the first spouse. By operation of law, the surviving spouse becomes the sole owner of the subject assets. When the surviving spouse dies, his or her Will should be probated to pass title to that spouse’s property to the heirs or persons named in the Will as beneficiaries.
Likewise, just because a person dies without a Will does not automatically mean the probate process can be waived. Though this would be called “intestate administration,” the process of changing ownership from a deceased person to his or her heirs must be addressed and carried through the probate court. The two statuses of a decedent, “intestate” where one dies without a Will, and “testate,” where one dies with a valid Will, are needful of going through the probate process if a person died owning any property in that person’s sole name.
More about ProbateSo, that is the real discussion between the attorney and person consulting with the attorney on the issue of probate. Did the deceased person die owning any property, either real or personal, in that person’s sole name? If so, you need to initiate a probate proceeding in court, regardless of whether the deceased person had a Will or not.
There are many situations where a person died owning no real estate. The person owned no automobiles or boats, and their personal property is minimal and of little value. Maybe the person had moved in to assisted living and disposed of most of their assets before doing so. The beneficiaries of life insurance policies are in place and current. However, at the time of the person’s death, it is discovered that a bank account in the person’s name has neither a joint owner or payable on death beneficiary. For the heirs to obtain those funds on account, the probate process will be required. Depending on the size of the account, a small estates procedure could possibly be used.
Probate is also needed when beneficiaries are not named for a life insurance policy. This is especially unfortunate because creditors of the deceased person could never have had access to those life insurance proceeds if they passed normally to named beneficiaries. However, for the life insurance company to pay out the death benefits, an estate will need to be opened in probate court. The check will be payable only to the estate. Creditors would be able to file claims in this estate for payment of debts of the deceased person.
I advise everyone to have a valid and properly executed Last Will and Testament. There are ways to eliminate the need for presenting it for probate at death. The most advisable and common way is to incorporate joint ownership of property and ensure that beneficiary designations are in place and up to date for all a person’s financial accounts and life insurance policies. Many times, this will obviate the need for entering probate at all, because the deceased person’s property automatically passed to others by other means.