When is probate required?

Probate is required whenever a person passes away with an asset only in their name. Their trust does not own the asset and no beneficiary (TOD or POD) is listed on the account. Probate is also avoided with co-ownership of real property. At the death of a co-owner of real property, we must consider the language within the deed to determine who the remaining property owners are. Therefore, during the estate planning process, we request property deeds to all real estate to determine how assets are currently titled and if we need to change them. There are two primary ways real property is held:

1) With rights of survivorship. The surviving party (spouse) fully owns the property at the death of the first owner, or

2) Tenants in common. With this method of ownership the rights of the deceased owner do not pass automatically to the remaining co-owners and requires probate to transfer the asset. When determining if a probate administration needs to be initiated, if we aren’t talking about jointly owned assets, our office first determines if the asset is in the decedent’s name alone at the time of death. If so, we know that probate is needed. Probate is a court procedure used to change title to assets from the name of a decedent into the name of the living beneficiaries, heirs, or a trust. To complete the transfer, we need to petition to court to appoint an Executor, who is granted authority to transfer the assets.