Does Having a Last Will and Testament Mean You Get To Avoid Probate?
Clients are often unpleasantly surprised to learn that just having a Will does not mean you can avoid Probate. They are also sometimes annoyed when they learn that even though they are named as the Executor in a Will, that alone does not give them automatic authority to access the decedent’s assets.
Yet both of these statements are true.
To Clarify, What Is Probate?
Probate is the judicial process whereby a will is “proven” in a court of law and accepted as a valid public document that is the true last testament of the decedent. So just having a Will does not avoid Probate, as the Probate Court must oversee the distribution of assets, using the Will as a guide.
In the absence of a legal will, the estate is settled according to the laws of intestacy in the state of residence of the decedent at the time of death.
And what is a Decedent?
A decedent is basically a deceased person, whose estate is going through Probate.
So How Do You Prove a Will?
The first step is submitting the Original Will to the court with a petition. After all the potential heirs and beneficiaries are notified of the filing, the Court will make a determination on appointing the nominated executor.
After someone is appointed as Executor (or Executrix), they can access the decedent’s accounts, pay bills and begin preparations for filing the next round of paperwork with the Probate Court. Forms such as an Inventory of the decedent’s assets and an Estate Tax Return, followed by the proposed distribution of assets as stated in the Will.
A Last Will and Testament cannot avoid Probate, as it provides the Court with the deceased’s wishes, with respect to the arrangement of the assets, and nominates who should be in charge of taking care of the estate (i.e., the Executor).
Without a Will, the deceased’s assets will pass under a hierarchy of relatives, including a spouse, children, parents, and siblings. While the Will allows the decedent to specify a different outcome, the distribution still requires Probate Court oversight.
It is highly recommended to hire a Probate Attorney for this process. They would submit all the necessary forms and guide you through this difficult and possibly long journey of settling a loved one’s estate.
Related Post: Connecticut Probate Process for Dummies
Which Assets Fall Under Probate Court Jurisdiction?
The Probate Courts have jurisdiction to oversee the placement of certain assets. The assets under Probate Court jurisdiction include any asset owned by the decedent in his or her individual name. Excluding assets that are owned jointly with someone else or that have a beneficiary designation.
Assets that the decedent owned jointly with another person pass automatically to that joint owner. They do not pass through the decedent’s Will or require probate court involvement. Some however are less automatic than others.
When it comes to joint bank accounts, the decedent’s name could be easily removed from the account, with the submission of a death certificate.
However, in the case of joint ownership of a house, for example, Paperwork provided by the Probate court will need to be filed with the town clerk and recorded on the land records in order to change the ownership status of the property.
Many married couples may think that no action is needed when one of them passes away because they both owned the house, thereby hoping they can avoid probate altogether. But, if the surviving spouse will need to sell the home at any point, they would not be able to do so with the decedent’s name still on the deed.
Related Post: So You Inherited A Property. Now What?
If the decedent completed paperwork, typically directly with the financial institution, to name a beneficiary or POD (“payable on death”) or TOD (“transfer on death”), that asset passes directly to the named beneficiary without the Will or probate court involvement.
Assets that most commonly include beneficiary designations are life insurance and retirement accounts, such as IRAs and 401(k)’s.
All other assets, including individually owned real property, bank accounts, and life insurance policies or retirement accounts that have no valid beneficiary designation, require probate court involvement. Whether there is a Will or not.
If Not With a Will, Is It Possible To Avoid Probate Court Involvement In Other Ways?
The only way to avoid Probate Court involvement is to remove all assets from your individual name. That can be done in two ways:
- Appoint a Joint Owner. But, putting a joint owner on all assets can be risky because the joint owner’s creditors could put a claim on the asset. Moreover, the joint owner is often not the only intended beneficiary. But when the asset automatically passes to that joint owner after the decedent’s death, it does not pass to the decedent’s other beneficiaries.
- Prepare a Trust. The less risky way to remove assets from your individual name is to prepare a Revocable Trust and transfer the assets into the Trust.
It is not necessary to avoid Probate or advisable for everyone. It is important to meet with an estate planning attorney who seeks to understand your goals and concerns. To recommend a plan that fits your needs and will not turn it into a cookie-cutter document that cannot analyze all of the moving parts.
If after reviewing your goals and concerns, you determine that a Will is the right plan for you, you might determine that having a Judge oversee your estate and make sure the right people receive the right distributions is not necessarily a bad thing.
At least you will know that Probate Court involvement is required. And hopefully, you can provide guidance to your loved ones on the steps they will need to take after your passing.
Joan Reed Wilson Esq. – Managing Partner
Practices in the areas of estate planning, elder law, Medicaid planning, conservatorships, probate and trust administration, and real estate. Admitted to practice in the States of Connecticut and California, she is the President of the CT Chapter of the National Academy of Elder Law Attorneys (NAELA), an active member of the Elder Law Section of the Connecticut Bar Association, accredited with the PLAN of CT for Pooled Trusts, with the Veteran’s Administration to assist clients with obtaining Aid & Attendance benefits for long-term care needs and with the Agency on Aging’s CareLink Network.