Probate: What is it? Must All Wills go Through Probate?
Most people have heard the phrase, “probating a Will,” yet very few understand what the probate process is or how it works. For the most part, people think probate is complicated and expensive and that it should be avoided in any possible way. This is not necessarily true.
What is Probate?
Probate is the legal process which permits an executor, also known as a personal representative, to transfer and distribute assets as directed by a deceased person in their Last Will & Testament to the beneficiaries identified in the document. The complexity of the probate process typically depends upon the size and circumstances of the estate.
Generally speaking, every Last Will & Testament needs to be probated, but the process can be straightforward for most average estates if all of the necessary documents are in order. For instance, a basic probate process in New Jersey takes as little as an hour to complete, costs less than $200, and can be accomplished without an attorney. However, it is important to note that the process differs from state to state and situation to situation and, again, depends on how organized you are and if you have all the necessary documents.
How Probate Works
The probate process begins immediately after death. After the death of the testator (the person who executed the Will), the executor named in the Will must take the Last Will & Testament and a copy of the death certificate to the appropriate local court which handles probate matters.
The executor needs to complete forms to probate the Will. Most states have these forms available online. Visit Gentreo.com for help with links.
Necessary information to complete the forms usually includes a list of names and addresses of the closest next of kin/heirs at law. The clerk at the courthouse will examine the Will and other documents to determine if the Will can be probated.
Probating the Will
The legal review of the documents by the court is referred to as “probating the Will.” If all of the legal requirements are satisfied, the Will is admitted to probate and the court issues certificates or Letters Testamentary to the executor. These certificates or letters allow the executor to execute documents formerly done by the decedent.
This includes the ability to transfer title to automobiles, bank accounts, investment accounts, and more. The Will is filed and recorded in the court, and thus becomes public record and is listed in the General Index.
Each state requires the executor to notify all beneficiaries and next of kin (including those next of kin/heirs at law who are not beneficiaries in the Last Will & Testament) the following:
· The Last Will & Testament is being probated or has been probated
· The lace and date of probate
· A copy of the Last Will & Testament is available upon request
· The name of the executor
Notification must be done within a certain number of days from the date the Last Will & Testament will be or was probated. Each state has different requirements concerning the notice provision, but the average is sixty days. This should generally be done by certified mail or return receipt requested. Copies of each letter and the certified mail receipts proving that each person has received notice must be saved.
Many states then require the executor to file with the court a “Proof of mailing of the Notice of Probate of Will” and a filing fee. Once the judgment for probate and the Letters Testamentary have been issued, the Last Will & Testament is deemed “probated.” Only after this declaration can the executor begin to distribute assets and wrap-up the estate.
Validity of the Will
The court will review of the Last Will & Testament to determine its authenticity. If the Will is self-proving, (meaning it contains certain language that allows the document to prove itself), then no additional proof or testimony is necessary. However, if the Will is not self-proving, the court will require proof, usually in the form of testimony by a witness before the Certificates or Letters Testamentary can be issued.
As an aside, it is essential to make sure that your Last Will & Testament is self-proving, in accordance with your state's requirements. A self-proving will make the probate process quicker and easier. When a will is not self-proving, the probate process is generally extended and can be unnecessarily delayed and more expensive.
Does Every Asset Need to Go Through Probate?
The short answer is “no.” Generally, any property passing under a Last Will & Testament is called a “probate asset.” However, not all assets are controlled by a Last Will & Testament and therefore are not subject to the probate process. Some assets pass automatically to beneficiaries without the need for probate.
Whether a particular asset to be transferred must go through probate or not depends on how ownership to the asset is held. If title to an asset is held in the decedent's name only, then it is typically considered a probate asset. For example, real estate and personal property, such as bank accounts, stocks, bonds, and motor vehicles that are in the decedent's name only must be distributed through the Will and probate.
Items such as Irrevocable Trusts that were no longer in the decedent’s name were already not the decedent’s property, and thus, most likely, not a part of the probate process.
If title to an asset is held jointly by the decedent and someone else, like a joint bank account or property, the asset is considered to be held as “Joint Tenants with Right of Survivorship,” and as such, they are not subject to probate.
Another way that an asset can avoid probate is if it provides for a beneficiary designation. Life insurance proceeds, 401(k) plans, IRA’s, employee death benefits (e.g., pension, profit-sharing, etc.), and accounts titled “Payable on Death” (POD) or “In Trust For” (ITF) are generally considered beneficiary designation property.
For example, if an asset, like a bank account, is held jointly with a spouse or other, when one person dies, the account automatically transfers ownership to the surviving joint owner. Similarly, property held by married couples as “tenants by the entirety” will automatically pass to the surviving spouse.
Only assets held in the testator's name alone or with another as “tenants in common” and that do not pass under a contract will pass through the Last Will & Testament and need to be probated. Many people designate beneficiaries on accounts that permit it, to make the distribution of assets easier.
In very large estates, there may be financial and tax benefits to transferring assets outside of probate. It is important to note that you should keep a copy of every beneficiary designation form or account with your vital records, like your Last Will & Testament, in a safe place such as in the Gentreo Digital Vault.
Probate Laws Vary
Probate may not be as mysterious and complex as many people believe, but the larger the estate, the more complicated the process can be. Additionally, laws vary from state to state that may make the process more or less complicated.
For more information, visit us at Gentreo.com. We provide a simple and affordable way to create a heath and estate family plan.
Gentreo is not a law firm or a substitute for a law firm, or attorney, or an attorney’s advice or recommendations.