Many people do not know that trying to transfer property through their Will almost guarantees that one must go to Probate Court. That being said, having a Will is much better than not having a Will.

For example, if a person dies with a bank account in their name alone, they have no other person on the title, and they have not designated a beneficiary, the probate court is where their heirs must go to get the money. If you die with your sole name on your deed, your heirs must go to probate to get the title to that property.

Each state has laws that govern how the property of a person who left no Will and no beneficiary designations is distributed.

Probate begins with the filing of a Petition for Probate.  If there is a Will, the Will must be filed. The personal representative or executor named in the Will files the petition. If there is no Will, the next of kin files the petition. The law states who is the next of kin and who has priority to file the petition.

The petitioner files a form prescribed by the Orphan’s Court or Register of Wills for the county or city that gives their name, address, the name of the deceased and their relationship.

Notice of appointment must be given to all known creditors, heirs and legatees if there is a Will. Most probate courts require publication of the Notice of Appointment, Notice to Creditors and Notice to Unknown Heirs in newspaper(s) of general circulation.

After a period of time, ranging from 30 days to 6 months, most unsecured claims not filed against the estate are barred. In some states, a Final Account must be filed and approved by the Court. After approval and notice to heirs, the Personal Representative is then allowed to distribute the assets according to the terms of the Will or according to law.

The entire process is open to the public. It takes a minimum of six months and often years to finalize. Most people would prefer privacy and a more efficient method of transferring property.

This can be done by using the services of a competent attorney and careful planning.

Not all property must be probated. Property titled in the name of a trust does not usually require probate. The title to certain other types of property will transfer at death automatically. Real property owned as joint tenants with rights of survivorship (“JTROS”) or tenants by the entirety (between married persons) will automatically be owned by the survivor on the death of one owner.

Bank accounts in the name of two or more persons as joint tenants with rights of survivorship will pass to the survivor automatically. Such property does not need to be probated. Accordingly you must be very careful whose name you put on your bank accounts. It will pass strictly by title even though your Will or trust may direct a different result. It is very important that the attorney preparing your estate documents review the titles to all of your property to be certain your actual wishes will be followed.

Another way in which property passes outside of probate is through payable on death beneficiary designations. These are considered contractual and will override the provisions of your Will or trust. Payable on death beneficiary designations for bank accounts, retirement accounts and life insurance policies facilitate property going to the designated beneficiaries without probate on death.

It is important, however, to know that non-probatable property is still counted as part of your gross estate for estate tax purposes. Even though the property may pass outside of court, when you file your estate tax return, it must be listed as part of your gross estate for calculating state or federal estate tax liability.

A trust is an agreement about how to manage property. The Grantor or Settlor (the maker of the trust) retitles property in the name of the trust, manages that property, and is the beneficiary while he/she/they are alive.  A trust ensures a smooth process of transferring property to beneficiaries after the Settlor’s death.  Property that is titled in the name of the trust does not usually have to be distributed through probate.  The Settlor can retitle property into the name of the trust, including houses/land, bank accounts, non-retirement investment accounts, tangible personal property, business interests, and other major assets.

The trust survives the Settlor and can direct how trust property is used, managed, or distributed for decades. The trust can provide for distributions to beneficiaries upon certain milestones (e.g., graduation from college, marriage) or at certain ages.  A trust can be revoked or amended while the Settlor is alive but becomes irrevocable after the Settlor’s death.

Trusts provide privacy as the trust instrument is usually not filed with the probate court or Register of Wills office.