Before you write your will, plan your estate, or settle your end-of-life affairs, it is important that you understand what probate is and how your end-of-life documents can ease the process for your loved ones.
In short, probate is simply the legal verification of a will. When a person dies, someone has to confirm that everything in that person’s Last Will and Testament is valid and binding. Items that generally need to be evaluated are signatures, debts, beneficiaries, and guardianship of minors. After the court verifies that a will is legally binding, they make sure all debts and taxes have been paid before transferring money and other assets to the person’s beneficiaries. Anything that has not been specified in the will is then distributed by the court to new beneficiaries.
Things that Have to Go Through Probate
If you provide a legal will, not everything has to go through probate. However, even after a will has been verified, the following items do.
Money, belongings, and property with you listed as the sole owner must be evaluated by the court.
Items Without a Beneficiary
The most common cause of major assets not having a beneficiary is when your primary beneficiary dies before you do. Make sure you update your will to ensure that your beneficiaries are still able to receive your assets.
Property Not Mentioned in Will
Furniture, vehicles, and family heirlooms not mentioned in your will must go through probate as well.
Things that Don’t Have to Go Through Probate
Examples of things that do not have to go through probate include the following.
Joint Property and Bank Accounts
If you share money or property with a spouse, you cannot include it as a whole in your will. Therefore, it does not go through probate.
Payable-on-death items, such as life insurance or retirement funds, are separate from your will. You should name a beneficiary specifically for POD benefits within the administration.
Items with Beneficiaries
Items specifically mentioned in your will go through probate in the sense that the court makes sure they are given to the correct people. However, the court does not have the authority to take those items from your designated beneficiaries.
A living trust is separate from a will and does not go through probate.
Understanding the Probate Process
What does the probate process actually look like? Assuming you have a will, the court will simply check its validity and then settle it according to your wishes. The process usually occurs in the following steps.
- Take the death certificate to the court.
- Verify the will’s validity.
- Name a probate executor (person in charge of settling your affairs).
- Contact beneficiaries about their inheritance.
- Determine the collective value of all assets.
- Pay any leftover debts.
- Distribute remaining assets to beneficiaries.
What Happens if You Die Without a Will?
Probate occurs whether you create a will or not. However, it is a much easier process if the court can refer to a legally binding will. That way, the court does not have to determine who gets what. Creating a will early in life ensures that your final wishes will be carried out smoothly and efficiently, with your loved ones receiving what you want them to receive.
Remember, your will doesn’t help anyone if no one knows where to find it. Be sure to store the location of your will in a database so your beneficiaries know where to find it after you pass away.