Does All A Person's Property Have To Go Through Probate?

Probate is a process by which the will of a decedent is verified at authentic and valid, and by which all titled assets that were owned by the decedent are legally transferred and distributed to the named beneficiaries.

Probate also deals with the payment of taxes and debts that were owed by the decedent, and these are taken from the estate.

If anyone contests the will, this is another issue that is dealt with through the probate process.

However, not all of a decedent’s assets will go through the probate process. In fact, if the deceased had no titled or significant assets to his name, then the probate process will not be necessary and the will is usually executed by a family member of the decedent. If there is no family member to act as executor, an administrator is normally appointed to deal with the execution of the will. If there is no will and no executor/relations, then the estate normally goes to the state.

Any assets that were jointly owned, such as land, property, vehicles, and bank accounts, do not have to go through probate. This is because they will already have natural successors (i.e. the joint owner).

However, if there is no contractual obligation for the deceased’s half of the property/land etc. to automatically go to the joint owner then the decedent may be able to name a different beneficiary for his or her half of the asset(s) in which case it would have to go through probate.

Assets such as life insurance policies will also be exempt from probate. This is because assets such as these already have contractual beneficiaries, i.e. the person named as the beneficiary at the time the policy was taken out.

You may have a contractual beneficiary on a bank account or trust, whereby they are due to go to a specific person upon your death. Again, these would be exempt from the probate process.

You will also find that most states allow property and assets up to a certain value to bypass the probate process. This amount that can be excluded from probate can differ from state to state, and you should check with the courts in your own state as to what their regulations are. Instead of going through the probate process, the specified assets are then put through a far simpler process of transfer.

The chances of your assets having to go though probate are increased if there is no will or if the will is unclear. It is therefore a wise idea to ensure that all of your titled and valuable assets are mentioned on your will, and that the chosen beneficiaries are also clearly named.

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