Probate is the process by which estate assets pass to a person’s surviving heirs after death. With certain exceptions, any asset the decedent owned in his or her individual name must go through probate.

If a decedent dies with a valid will in place, it is referred to as a testate estate. If the decedent dies without a valid will, it is known as an intestate estate. In either case, probate of the estate will be necessary.

Probate requires an estate to be opened in the probate court of the county and state where the person was domiciled at the time of his or her death. For a testate estate, the decedent’s will governs the distribution of the estate assets. But for an intestate estate, the default rules of the state where the decedent was domiciled will determine how the estate assets are distributed.

The probate rules vary from state to state, and in some cases even county to county. However, most probate laws tend to follow a similar process and rules. Those rules typically include filing requirements for the decedent’s will, formal notice requirements to interested parties (such as heirs and creditors of the decedent), and timelines and deadlines for administering the estate. Unless the court grants independent administration, the estate’s executor or administrator will be required to report regularly to the court and sometimes even must get the court’s permission before taking any official action for the estate. Probate filings and proceedings are also open to the public, and additional court fees and legal expenses can be incurred.

So how can you avoid probate?

Assets titled jointly with any other individual(s) and assets with a beneficiary designation attached (e.g. life insurance policies with a designated beneficiary, retirement accounts with a designated beneficiary, and transfer on death designations) will pass to the surviving owners or designated beneficiaries at the decedent’s death without probate. Also, assets owned by a trust will not be subject to probate and therefore can pass to designated beneficiaries outside of probate at the decedent’s death.

Avoiding probate can help avoid the rules and timelines it requires, which can often help save time and money by expediting the administration of the decedent’s legal affairs. It can also help ensure more privacy of your loved one’s affairs, as well as reduce the stress and emotions of dealing with everything.  

Please feel free to contact any of our estate planning attorneys to help you design an effective strategy for avoiding probate in your own estate plan.