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Question: What is a probate?

Answer: A probate is a process that is overseen by the state, through probate court, that provides for the transfer of real property and personal property to beneficiaries after the death of an individual.

Question: What is a Will and does it prevent my property from having to be probated?

Answer: A Will is a legal document granting disposition of real property (called a devise) or personal property (called a bequest) intended to take place after the death of the individual (called the Testator) who is making the decision, before he dies, as to how to pass his assets to his heirs or whom ever he has in mind.

  • Even though you spell out how you want your assets to be distributed amongst your beneficiaries in a will, the will still has to be probated in court.

Question: What happens to the assets that are listed in my Will?

Answer: Before the disposition of any of your assets, there has to be a probate action taken in accordance with the laws of your state. In the probate action, the state first insures that the will is valid and then proceeds to notify all beneficiaries of any action taken as far as what assets are being passed on.

Question: What happens if I die without a Will?

Answer: If you die without a Will or a Living Trust, real property will automatically be probated if there is no joint ownership or right of survivorship and the court will determine who your beneficiaries are, how your assets will be distributed are and how much each beneficiary will receive.

Question: What exactly do the court do as far as a probate is concerned?

Answer: The probate court insures that assets are protected against theft and unscrupulous persons who might try to take advantage of your beneficiaries or manipulate property that don't belong to them during the probate process.

Question: What happens if I have a mortgage or other liens on my property?

Answer: The court will make sure that mortgages and other liens are paid, including property taxes and other assessments placed on the property by local, state and federal jurisdictions.

Question: How can I be sure that my beneficiaries will get what I want them to have?

Answer: The court will make sure that the instructions you leave in your Will are followed as long as they are within the law. But as with every thing else, there are no absolute guarantees because there may be things that you forgot about or changes that were not addressed after you drew up your Will.

Question: How can I avoid having my beneficiaries go through the probate process?

Answer: In states with rights of survivorship or joint tenancy, you can own your assets with a spouse, child, friend or any one you choose. Thereby, the assets will pass on to the joint tenant without having to be probated.

Question: In Joint Tenancy, will there be higher tax consequences?

Answer: There may very well be, so before making any changes in how you own property now, you should talk with your accountant or tax prepare.

Question: Are there other ways to avoid probate?

Answer: Yes, since Wills have to be probated and because of the time and money involved in the process, many people are turning to Living Trusts for the disposition of their assets after death.

  • Even though you can prepare Wills and Family Trusts on your own, it is advisable to consult an attorney. The slighted infraction may be grounds for the Will or Family Trust to be deemed void by the court.

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