Understanding What Probate Is and Is Not
What is probate?
Property that passes under your will is subject to probate. Probate is the process of obtaining probate court approval to pass property as your will dictates, or, if you don’t have a will, under your state’s law of descent and distribution. This includes filing the will, appointing an executor, obtaining appraisals, making an inventory of assets and accounting for distributions from the estate.
A nearly universal misunderstanding of wills and probate is that all property is controlled by the will and that all property has to pass through probate. Neither is true, as we explain below. You should also read Online Estate Planning: Buyer Beware.
Another common misconception is that “avoiding probate” means avoiding estate taxes. Estate taxes are determined under tax law. Tax law is entirely separate from probate rules.
Does any of my property pass outside probate?
Yes. It is very common for clients to have significant assets that do not pass under their wills, so those assets do not pass through “probate.” What kind of property passes under a will and what kind of property does not? In general, only assets titled in your name alone pass through probate. This includes homes, bank and brokerage accounts titled solely in your own name. By contrast, any asset held jointly with right of survivorship passes outside probate to the surviving owner. Life insurance, IRAs and retirement plan assets pass outside probate according to your beneficiary designation. Many estate plans fail to work as the client intended because they did not complete beneficiary forms, mistakenly believing that property passes under their will.
Taft estate planners take into account all of the property you have as reflected in the questionnaire you complete and information you provide to us, so that each asset passes as you intend, whether under your will or otherwise.