Probate Services
When a loved one passes away, title to the decedent's estate passes immediately to the beneficiaries under the decedent's will or to the heirs-at-law if the decedent died without a will.
A decedent's estate consists of the property, both real and personal, which the decedent owned at the time of death. Real property includes land and its improvements on the land and also includes oil, gas, and other mineral interests. Personal property is all property other than real property, including cash and bank accounts, personal items, household furnishings, vehicles, stocks and bonds, life insurance policies, and retirement or employee benefits.
Although decedent's estate passes immediately, there must be an actual transfer of ownership of the property by proving the will in court or, if there is no will, by having a court determine who are the decedent's heirs. The purpose of court involvement is to protect the rights of the family, those entitled to receive property, and the creditors of the decedent's estate.
Probate and estate administration are the processes through which the estate is transferred to the heirs or beneficiaries.
Is Probate Necessary?
Probate will be necessary if the estate consist of any assets which are titled in the name of the decedent and require a title transfer by court intervention. In most cases, if the estate contains only assets that do not require probate or the remaining estate is considered "small", then probate may not be required.
Alternatives to Probate
The probate process is a necessary process in many cases, but there are occasions when probate is not the best option.
Probate Exclusions
Various asset types are generally exempt from the probate process:
Jointly owned assets, such as:
- Property held in joint tenancy with right of survivorship
- Property held in community property with right of survivorship
- US Savings bond with multiple owners
Assets with named beneficiaries, such as:
- 401Ks, IRAs, etc.
- Life insurance policies (unless the beneficiary is the estate itself)
- POD Payable-On-Death accounts
- TOD Transfer-On-Death Securities
- TOD Deeds or Real estate subject to a transfer-on-death deeds
- TOD registered Vehicles
Assets held in a trust
Probate is generally necessary for possessions that have a title or deed, and not previously listed. If the decedent owned any real estate or other assets that did not name beneficiaries, then the will must be probated in order to transfer title to the beneficiaries as spelled out in the will. A person is not permitted to probate an estate "pro se." An attorney must be hired to appear in the probate court on behalf of the estate. One of the first steps is to determine whether the decedent had a Will.