Before you write your will, plan your estate, or settle your end-of-life affairs, it’s important to do your research. Take steps to understand what probate is and how your end-of-life documents can ease the process for your loved ones.
Defining Probate
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 include 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. This is why it is important to specify who you want your beneficiaries to be, as well as who you don’t want your beneficiaries to be.
What Has to Go Through Probate?
If you provide a legal will, not everything in that will has to go through probate. However, even after a will has been verified, the following items always have to go through probate.
Individually-Owned Assets
Money, belongings, and property with you listed as the sole owner must be evaluated by the court. If you are married but keep separate bank accounts, your personal bank account will be inspected by officials.
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. Additionally, you should evaluate and update your will after every major life change to ensure you don’t want to add any new beneficiaries (or remove old ones).
Property Not Mentioned in Will
Furniture, vehicles, and family heirlooms not mentioned in your will must go through probate as well. Typically, these are left to your named beneficiaries as well, but not always. Again, it’s important to be specific if you have strong preferences about where your belongings end up.
Things that Don’t Have to Go Through Probate
On the other hand, not everything has 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. If you want to leave your portion of the money to someone specific, you will either have to trust your spouse to give it to them or create separate accounts.
Payable-On-Death Items
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.
Living Trust
A living trust is separate from a will and does not go through probate. Rather, you grant another individual legal permission to control your funds in the event you become unable to.
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.
