We have all heard statements such as, “I want to avoid probate,” or, ” I have to probate my father’s estate.” But how many of us know what “probate” is or means?
When a person dies, he may own assets for which he has a title (such as vehicles) or for which he has a deed (such as a house and land, mineral rights, or a timeshare). These assets may be titled in just the deceased person’s name. Bank accounts may also be held in just the deceased person’s name. At death, each asset must be retitled to the person who is to receive the asset.
There are several ways to ensure your assets transfer to the person you intend to receive the asset, but examining those methods is beyond the scope of this blog.
What Does a Will Do?
Probate is a process through the court to transfer title to your assets. Your estate consists of everything you own at death, including interests in entities such as limited liability companies, corporations, and partnerships. Probate may be required whether or not you created a will. If you have a will, assets will transfer to the persons you designate in your will. If you don’t have a will, then state law designates the persons to receive your assets. If you don’t have a will and you have not planned ahead for transfer of title outside of court, your estate will be required to file a probate to transfer assets.
The State Will Not Take Your Assets
A common misconception is that the state will take your assets if you do not have a will. This is not true. The state does not want your clothing, used furniture, used vehicle, or land. State law provides a structure for determining your heirs, and, if no one else closer is found, will look for the nearest ancestor and closest kin.
Effective planning for transfer of title to your assets without using the court will save your heirs the expense and time involved with a probate process. An attorney should be involved in this process — probate requires notice to interested parties at specific times and has several deadlines which should not be missed. Some probates must notify creditors of the filed probate and must stay open at least six months. Finding a good attorney, like a Montana estate planning attorney from Silverman Law Office, will help you plan to avoid a court proceeding at your death.