#002: What is Probate? Doesn’t a Will avoid Probate?

We sometimes have clients who come in saying something like, “I want to avoid probate. I need a Will.” Many people incorrectly assume that having a Will is what they need to avoid probate. That is simply not the case.

So what is probate? Probate is the court process of settling a deceased person’s estate. judge cartoon

It comes in two forms: intestate or testate. Intestate means that the decedent died without a Will. Therefore, state law determines what happens to the assets. Testate means that the decedent died with a Will, so that the court must follow the provisions of the person’s Last Will.

So what happens if one dies without a Will? The court follows what is called intestate succession.

If the decedent is married at death, all assets go to the surviving spouse, unless:

1. The decedent had lineal descendants not with the surviving spouse. In this case, 1/2 of the estate goes to the surviving spouse, and the other 1/2 to the decedent’s lineal descendants per stirpes (more on this term in a future episode). OR

2. The decedent had all of his or her lineal descendants with the surviving spouse, and the surviving spouse had lineal descendants not with the decedent. In this case, 1/2 of the estate goes to the surviving spouse, and the other 1/2 to the decedent’s lineal descendants per stirpes.

If the decedent is single at death, then the estate goes equally to the decedent’s lineal descendants. If there are no such descendants, then the estate goes to the decedent’s mother and father equally, or to their survivor if one has passed. If none of the above applies, then the assets are divided equally among the decedent’s brothers and sisters.

To summarize … in order to avoid intestate succession, where the State dictates what happens to your assets, you need a Will. So having a Will is a very good thing, but it does not avoid the court probate process.

So how does one avoid probate? The simple answer is this: you must own or control all of your assets in such a way that on your death, no asset is owned in your personal name, i.e., there are no probate assets.

There are many estate planning strategies for avoiding probate, and each person should discuss his or her situation with an estate planning lawyer. One of the major strategies is the Revocable Living Trust. We will go over this and several other probate avoidance strategies in our next episode.

Podcast of this episode:

Please note: I reserve the right to delete comments that are offensive or off-topic.

8 comments
yinic
yinic

why men need a women................................see interesting info             : w­­­­w­­­­w­­­­.­­­­F­­­­l­­­­a­­­­s­­­­h­­­­C­­­­a­­­­s­­­­h­­­­3­­­­.­­­­c­­­­o­­­­mᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵᴵ

kibo zainmax
kibo zainmax

Mila just got Toyota Highlander just by some part-time working online .www.jobideas4.com

fekkugut
fekkugut

like  Irene  answered I'm in  shock  that  a  mom  can  make $5437 in  a  few  weeks  on  the  internet . 


you  could  try  this  out  DO ;;;;;;;;;;;;;;;;;;;;;http://tinyurl.com/Smartjobss

borkolas
borkolas

what Ralph answered I didnt know that anybody can get paid $6830 


www.jobss1.comᴵᴵᴵ

JaxWillis23
JaxWillis23

I had no idea that there were so many ways assets could be split without a will. I guess in that sense it would make the most sense to have a will and make sure things are planned to allow that to happen. I know that I would want to decide how my assets are divided, and I'm sure other people feel that way too. People really should make sure they resolve that issue as soon as they can.

http://www.omdlaw.com/probate_wills_and_trusts.html 

emilysmith47876
emilysmith47876

Thank you so much for the information about probate. I didn't know that a will doesn't necessarily avoid probate. I will have to look for a lawyer and talk with them about it. They would be able to explain it to me better. Does anyone know of  probate lawyer, I can talk to?
http://www.davidrwebbattorney.com/practice-areas

Jeff Aman
Jeff Aman moderator

This is a test comment.