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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
Colorado Law: Death Without a Will
 

References

Related articles

How to Get Out of Inherited Joint Property Held With a Non-Spouse

When a parent or relative dies, he may leave several heirs who jointly inherit his entire estate, including any real estate. Without a provision in a last will and testament specifying which heir gets what property, the real estate will be inherited in undivided interests to be held by the heirs generally as tenants in common. Any change in ownership of the inherited property will either be by agreement of the heirs or by court order, subject to the terms of any will.

Can a Divorce Be Finalized With a House Sale Pending?

Divorcing and selling real estate can both take a long time – months or even years – and the chances of both events reaching a conclusion simultaneously are minimal. If you decide to sell the family home, it may happen before you're officially divorced or you might be divorced before a buyer comes along. You can make provisions for the home's sale in your settlement agreement if your divorce finalizes first, or the court can order disposition of the proceeds if you divorce by trial.

Laws Regarding a Child's Portion in South Carolina Wills

Money is often a source of conflict among family members. That's why it's important to convey your wishes regarding how you want your property distributed after your death. Keep in mind that while your children may feel a sense of entitlement to your property, there is no law in South Carolina that requires you to leave a certain percentage of your estate to your kids in your will.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Do Wills Have to Be Filed?

The purpose of a last will and testament is to leave instructions regarding the distribution of property after death. ...

Is Probate Required to Transfer Property Left in a Will?

A decedent, through the estate planning process, may have provided for the majority of his property to pass outside of ...

Joint Tenants With Rights of Survivorship Vs. a Will

You may have heard the term "survivorship deed" in conversations relating to estate planning, and so you may be ...

How to Make a Fair Prenuptial Agreement Involving a House and Children From a Previous Marriage

In most states, anything you own prior to marriage is legally your sole and separate property. Your spouse can’t touch ...

Browse by category
Ready to Begin? GET STARTED