Probate in is a process in which a court decides whether a will is valid or not. It is also legally required in most cases for the management and distribution of a decedent’s assets with or without a will. This definition suggests that if you skip probate, there is no way to legally transfer those assets.
Yet, we still receive calls from local residents asking if they can just skip the formal probate process and deal with the deceased’s assets privately amongst family. The answer to that question in most cases is “no”. Here is what happens if you don’t contact the probate court after the loss of a loved one:
- Legal transfer of assets cannot happen.
If the estate is large enough to trigger probate, any assets owned by the deceased cannot be transferred to any member of the family without court approval. Even if a family member quietly moves into the deceased’s home, a problem will eventually arise when he or she tries to sell the property as it will not have a clear title. If you skip probate when it is required, it will eventually catch up to you.
- Heirs can sue the administrator of the estate.
Courts appoint an administrator if the decedent dies without a will. The administrator has the same responsibilities as an executor of a will. That means it is the administrator’s job to file probate documents. If this does not happen, the potential heirs of the estate can sue.
- The validity of the will may not be proven.
Just because the decedent leaves a will, that does not mean the executor can just distribute assets according to the decedent’s wishes. Again, the court needs to determine the authenticity of the will. Common problems with Last Wills and Testaments include the absence of the testator’s required mental state, lack of specificity, and improper witness signature. These problems can only be sorted out through probate litigation.
Are there any exceptions?
It may be possible to avoid probate if you put certain planning strategies into place while you are still alive. One common way to avoid probate is by creating a Revocable Living Trust. When the trust creator dies, the trust assets are passed down to the beneficiaries with minimal court involvement.
In the case of real property, joint tenancy may be a practical option to avoid probate. Joint tenancy means the property has more than one owner. All joint owners have equal rights and obligations. When one of them passes away, his or her share of the property immediately transfers to the surviving owner. Again, in such a situation, no court proceeding is necessary.
Other assets with named beneficiaries may also be transferred outside of probate. Life insurance proceeds, for instance, are generally not part of the policyholder’s estate if the policy has a named beneficiary. When the policyholder dies, the beneficiary receives the death benefit without probate. But if the policyholder does not have a named beneficiary, the life insurance proceeds become part of the estate after death and will need to go through the probate courts.
Nonetheless, it is worth noting that laws regarding transfer of properties and assets from a decedent to the heirs vary from state to state and are updated periodically. If you have questions about how to avoid probate without legal repercussions down the road, contact us to schedule an initial consultation.