When Not to Probate a Will

By Marie Murdock

If you have a will prepared and do not need it due to alternate estate planning, your loss will be the cost of the will preparation. That cost, however, may seem minor in the long run if laws change or errors were made in your estate planning process that make it necessary to probate the will after all. Notwithstanding these facts, however, it may not always be necessary to present the will for probate.

Property Given Away in Advance

Many people may choose to gift away or change ownership of their property prior to their death. If you choose this option, laws may allow you to gift away certain portions of your estate over a specific period of time to your children tax-free, notes Forbes.com. Depending on the size of your estate, you may need to plan this strategy well in advance, giving away portions of your property as time goes by. If your major asset is the house you reside in, you may choose to deed it in equal shares to your children prior to your death, reserving to yourself the right to live on the property until you die. This reserved right is usually referred to as a life estate in property. As long as all your children agree to the distribution of your personal effects after your death and there are no other items of property that need to have a legal title transferred, then it may not be necessary to probate your will.

Property Automatically Transfers Upon Your Death

You may have had your deed prepared with survivorship provisions so that your real estate transfers to your spouse upon your death. Vehicles and other assets may also be in both of your names so that everything goes directly to your spouse. In this event, there may be no need to probate your will.

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State Law Agrees With the Provisions of Your Will

Each state has laws that determine what happens to property when someone dies without a will. These laws are referred to as laws of intestate succession. Some state laws provide for your spouse to get your entire estate, while others give a portion to your spouse and the reminder gets divided equally between your children. If state law agrees with the provisions of your will, it may not be necessary to probate. In the event you decide to immediately sell real estate belonging to the estate, however, a title company may take exception to the discovery and probate of a will on any title policy issued to the new buyer.

Expired Statute of Limitations

Some states have a statute of limitations for probating a will. If your state has such a limitation, any will presented for probate after the expiration of the statutory period will not be accepted and the estate will be distributed as if the decedent died intestate.

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