I'm often asked why certain assets have to be probated and, correspondingly, what happens to the assets if no probate is opened. With limited exceptions, when a person dies owning assets in his or her name alone, those assets cannot be transferred to the intended beneficiaries without involving the Courts in a process known as probate. Probate is in fact the legal procedure through which the title to assets is transferred out the name of the deceased person and into the names of the beneficiaries. Consequently, probate is often unavoidable where a deceased person holds sole title to specific assets. If no action is taken with respect to such assets, they will in essence remain frozen. No one has authority to collect the asset or to direct the disposition of it. Ultimately, unclaimed assets may be escheated to the State by the third party holding any such asset on account of a deceased person.
Probate can rear its head in a number of situations. First, probate will likely come into play when a person neglects to do any planning for the transfer of his or her assets upon death. Probate issues can also pop up even when a person has engaged in some sort of planning. For example, problems frequently arise in the case where a person undertakes to make lifetime transfers or prepare estate planning documents without the guidance of a qualified legal practitioner. Additionally, if a person dies having a Will but no living trust, then the Will normally requires probate. Setting up a living trust usually involves the goal of avoiding probate. In this case, an unanticipated probate could still result when a person neglects to title one or more assets into the name of the living trust either at the point the trust is established or later when additional assets are acquired.
Many of you have already been exposed to a probate horror story or two. Probate has been depicted as slow, expensive and outdated. Complications such as owning property in other States or having interested persons who disagree over the disposition of the estate, can easily cause the costs to rise and delay the time it takes to complete the process.
What some people may fail to realize, however, is that probate is entirely a voluntary process. It only arises in connection with the estates of persons who have not taken appropriate steps to avoid probate. Indeed, there are plenty of good reasons to consider avoiding probate, whenever possible, including privacy matters, reduction of costs, and efficiency in the distribution of assets. Our team of estate planning attorneys can advise you as to effective strategies to avoid probate that are tailored to your unique situation. We can further counsel you on various methods available to facilitate post-death transfers of assets in certain circumstances without necessitating a full blown probate. The bottom line is that no one ought to be taken by surprise with unintended consequences affecting the disposition of his or her property.
Attorney Kari L. Stephens