When Do I Have to Probate?

September 16, 2015

last-will-and-testatment-iStock_000001424212SmallClients have many misconceptions when it comes to Probate. This article will help clarify the more common uncertainties.  First off, having a Will does not avoid probate – it is merely a roadmap in which to navigate Probate.

Simply stated, Probate is the legal process for transferring assets within a person’s estate.   Therefore, you only have to go through the Probate process if there are estate assets.  Following a person’s death (the “decedent”), the family members will typically evaluate all of the assets titled in the decedent’s name.  In many instances (especially for married couples), most assets pass directly to another person and therefore avoids having to pass via Probate.  The following are common assets that avoid probate.

  1. A life insurance death benefit in which a person is designated as the beneficiary. In this case, the beneficiary just makes a claim for the death proceeds directly with the insurance company.
  2. A retirement account (e.g. IRA, 401(k)) in which a person is designated as the beneficiary. In this case, the beneficiary works directly with the custodian to facilitate a rollover to an inherited IRA.
  3. Jointly owned real estate in which the deed reflects survivorship rights (e.g. Joint Tenancy with Rights of Survivorship) pass directly to the surviving owner.
  4. Jointly owned financial accounts that have survivorship rights pass directly to the surviving owner.

Let’s assume that most assets are titled in one of the above categories; however, there is one bank account that was titled only in the decedent’s name and without any beneficiary designation. This sole account will require a Probate process in which to pass title.  If the decedent had a Will, it will be proffered to the Probate Court and an Executor appointed to handle the Estate’s administration.  This administration requires that the Executor pay all debts and creditors of the decedent (including funeral expenses) before distributing the net bank account proceeds to the beneficiary under the Will.

In many cases, the Probate process is not overly expensive or time consuming; however, there are family situations in which the legal process of Probate can be very complex and cost family members much time and emotion. In addition to the avoidance situations referenced above, many clients implement a revocable trust in which to avoid probate for their remaining assets.

For more information on Probate, please contact Bryson Law Firm, P.C. at (404) 909-8842 or email info@brysonlawfirmpc.com.


 

Bryson Law Firm, P.C.: Suwanee, Georgia. Attorney Richard Bryson has over 15 years experience with investment entities, elder law, estate planning, probate, wills and trusts, tax planning, tax dispute resolution, asset protection, personal injury, business formation and governance, real estate transactions, and Medicaid and VA planning. Contact our Gwinnett County law firm at 404-909-8842 or info@brysonlawfirmpc.com.