Probate is a court procedure that enables your estate assets to transfer to your heirs. When you pass, the “title” to certain assets cannot transfer to your heirs unless your Will is probated. The probate court oversees this process and the assets cannot be distributed until the court approves the proposed distribution.
This process can sometimes be cumbersome and is typically done with the assistance of an attorney. However, not all assets must go through the probate procedure in order to be distributed to your heirs. Oftentimes people will re-title assets or name beneficiaries in order to avoid the probate process.
For instance, you may think it would be easy to make your real estate “transfer on death” to your three children which will avoid the probate process. However, in order for your three children to sell/transfer the real estate after your death, all three children must agree to the sale/transfer plus each of their spouses must sign the deed to release their dower rights in order to transfer the real estate. That may be a problem if one of the children are in the middle of a divorce or one of the children is generally not cooperative with the rest of the family.
The issue to keep in mind is that it is best to get comprehensive advice regarding your entire estate plan. Inform your attorney of all your assets and how they are titled and who you want to receive them when you pass. Your attorney can help you avoid probate if it makes sense. Your attorney will also be able to advise you of the pitfalls of certain planning. If you “piecemeal” your plan in an attempt to avoid probate, there may be some unintended negative consequences that result.
