Q: My husband and I are having a disagreement. He says that if we have written wills our estate will not have to go through the probate process. I say that even though our estate is very small, it will still need to be probated because we have property, insurance policies, retirement plans, etc.
A: Even if a person dies with a last will and testament, it is usually necessary to go through probate. One reason for this is that a court must provide an opportunity to allow others to object to the will. There may be someone who would like to claim that there was a later will than the one submitted or is, in fact, a forgery. Sometimes an unhappy relative may wish to claim that the person was not mentally competent to make a will or that the person was influenced unduly.
The court also wants to provide an opportunity for claims against the estate to be presented because these claims may change the amount due an heir.
For example, if the deceased owned real estate in his or her own name, no knowledgeable outside person would accept title to the property and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so that the buyer has a clear title. Similarly, few outsiders would enter into any other transactions involving the deceased's property before the will is admitted to probate and/or someone is lawfully appointed to act for the estate.
Some process is a must to transfer legal title from the deceased's own name to his or her beneficiaries or heirs. Most states also allow a limited amount of several types of property to pass to certain beneficiaries free of probate, or through a simplified probate procedure.
Real and personal property owned as a joint tenant passes to the surviving co-owners without going through probate as do life insurance policies and annuities payable directly to a named beneficiary. Money from IRA's, Keoghe, and 401 (k) accounts transfer automatically, outside probate, to the persons named as beneficiaries. Bank accounts that are set up as payable-on-death account (POD for short) or an "in trust for" account with a named beneficiary also pass to that beneficiary without probate.
If a living trust holds title to some of your property that also passes to the beneficiaries without a full probate because the trust is a legal entity which survives after your death.
Whether you or your husband is right or wrong about the power of your last will and testament, it is always right to obtain legal counsel to help with these and other issues of estate planning.
Attorney Sylvia Heldreth is a Certified Specialist in Real Estate Law. Her office is located at 1215 Miramar St. in Cape Coral.
This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.