What do you mean we have to go through Probate? But Dad had a Will…

One of the biggest misconceptions we come across is that probate is not necessary when a person has a Will. Some folks think that you can just show up to the bank with a copy of the Will and the bank will grant access to the funds. However that is not the way it actually works.

Probate is the process of “proving” the will (the word “probate is actually descended from the  Latin word “probare” meaning “to prove). The Will must be proved by a Judge before transferring title or ownership of property to the next person. If someone owns a car, a bank account or real estate in their own name, and then passes away, then the Probate Court needs to approve the Will and therefore who gets ownership of the property. One way to think of it is that if you do not have a Will, then the court will tell you where the assets should go, however if you do have a Will, then the person who died lets the court know where the assets should go. This still however requires a court to over see the process and approve any transfers.

So how do you avoid probate? One way is to see if you can add a beneficiary designation to an asset. Since beneficiary designations typically work outside of probate, an asset with a beneficiary listed goes to that named person without the need to go through probate. Another option, and possibly the most common, is to set up a revocable trust where you transfer the ownership of the property while you are alive, yet still reserving control over the assets. If the assets remain in the trust when you pass away, then the next person to be in charge of the trust (the Trustee) has the power to distribute the assets the way you intended.

But the bottom line remains that if you have a Will and assets are in the deceased person’s own name, then probate is still necessary.