May 21, 2025 • 7 mins
I. Have you ever wondered what happens to your assets and property after you pass away? ·
After you pass away all the property that you own and the debts that you have must be administered through a public court process called probate. ·
The word probate actually comes from the Latin word, as us lawyers always have to use Latin phrases, “to prove.” ·
You see, for the title to your property (whether that is real estate, your car, your bank accounts, etc.) to change to your heirs and family, a probate process must occur.
II. What is probate? ·
As I mentioned, before title to property can change to your family, that property must be administered through a process called probate. ·
Probate is a public court proceeding in which all of your assets, property, and debts are listed in public court documents. ·
There are a number of public court pleadings (i.e., inventory of assets, accounting, etc) which are filed with the court, as well as a number of court hearings that occur. ·
At the end of the court proceeding, the assets which remain are distributed to your family members either according to the will or according to state law, after all valid debts have been paid. ·
Example: o Imagine for a minute Jane, who passed away with a house and bank accounts. In order for Jane’s children to receive the house and bank accounts, Jane’s children had to go through probate before those assets could be transferred. ·
Many people think that if you have a will you do not go through probate. However, that is not true. Whether you have a will or not, your property will need to be administered through the probate court process.
III. Why does probate exist? ·
Probate Court to ensure debts are paid and assets are distributed either according to law or according to a person’s last will and testament.
Probate court is there to make sure that if a person leaves a last will and testament, that the will is determined to be valid according to law. Remember the word probate I mentioned early is Latin for the phrase “to prove.” Well, the will needs to be proven to be legally valid. ·
Probate court is also there to settle any disputes and disagreements among the heirs or beneficiaries
IV. “I hear probate is bad?” ·
Probate is time-consuming. This means that there will be delays for asset distribution to heirs or beneficiaries of the estate. ·
The average probate case can last anywhere from 6 months (more likely a year) to two years or more. ·
Even if you have a will, the will must be admitted to probate. ·
The executor that you name in your will has no power until the will is admitted to probate and the executor is given authority by the court to act on behalf of the estate. ·
Probate is also costly. Court costs, attorney fees, and executor fees can add up quickly ($15,000 or more even for simple estates is not unheard of). ·
Probate is also a public process. Every asset you own and debt that you have will be listed on a public court document than anyone can look up regarding your probate estate.
V. Should you avoid probate? ·
Having practiced as an attorney since 2011, I have seen both simple estates and complex estates go through the probate court process. In nearly every case, my clients have said:
o This took a long time
o This process was extremely expensive
o I wish mom or dad knew how to avoid this ·
In general, I have found that families which plan to avoid probate enjoy a simpler estate settlement process than those who go through probate
VI. Ways to avoid probate ·
Joint Ownership
o Any assets held jointly with right of survivorship will not go through probate.
o Instead those assets will immediately go to the surviving joint-owner
o Think, real estate owned by a married couple with right of survivorship. The surviving joint owner takes full ownership outside of probate.
o The same can be true for jointly held bank accounts ·
Beneficiary Designations
o Designating beneficiaries on your investment accounts, retirement accounts and life insurance can ensure that those assets do not go through probate as well.
o Those assets pass to the named beneficiary outside of probate. ·
Living Trusts
o Living trusts are a way to avoid probate as well.
o I would say that most of my clients prefer to establish a living trust.
o A living trust is a legal document and entit
After you pass away all the property that you own and the debts that you have must be administered through a public court process called probate. ·
The word probate actually comes from the Latin word, as us lawyers always have to use Latin phrases, “to prove.” ·
You see, for the title to your property (whether that is real estate, your car, your bank accounts, etc.) to change to your heirs and family, a probate process must occur.
II. What is probate? ·
As I mentioned, before title to property can change to your family, that property must be administered through a process called probate. ·
Probate is a public court proceeding in which all of your assets, property, and debts are listed in public court documents. ·
There are a number of public court pleadings (i.e., inventory of assets, accounting, etc) which are filed with the court, as well as a number of court hearings that occur. ·
At the end of the court proceeding, the assets which remain are distributed to your family members either according to the will or according to state law, after all valid debts have been paid. ·
Example: o Imagine for a minute Jane, who passed away with a house and bank accounts. In order for Jane’s children to receive the house and bank accounts, Jane’s children had to go through probate before those assets could be transferred. ·
Many people think that if you have a will you do not go through probate. However, that is not true. Whether you have a will or not, your property will need to be administered through the probate court process.
III. Why does probate exist? ·
Probate Court to ensure debts are paid and assets are distributed either according to law or according to a person’s last will and testament.
Probate court is there to make sure that if a person leaves a last will and testament, that the will is determined to be valid according to law. Remember the word probate I mentioned early is Latin for the phrase “to prove.” Well, the will needs to be proven to be legally valid. ·
Probate court is also there to settle any disputes and disagreements among the heirs or beneficiaries
IV. “I hear probate is bad?” ·
Probate is time-consuming. This means that there will be delays for asset distribution to heirs or beneficiaries of the estate. ·
The average probate case can last anywhere from 6 months (more likely a year) to two years or more. ·
Even if you have a will, the will must be admitted to probate. ·
The executor that you name in your will has no power until the will is admitted to probate and the executor is given authority by the court to act on behalf of the estate. ·
Probate is also costly. Court costs, attorney fees, and executor fees can add up quickly ($15,000 or more even for simple estates is not unheard of). ·
Probate is also a public process. Every asset you own and debt that you have will be listed on a public court document than anyone can look up regarding your probate estate.
V. Should you avoid probate? ·
Having practiced as an attorney since 2011, I have seen both simple estates and complex estates go through the probate court process. In nearly every case, my clients have said:
o This took a long time
o This process was extremely expensive
o I wish mom or dad knew how to avoid this ·
In general, I have found that families which plan to avoid probate enjoy a simpler estate settlement process than those who go through probate
VI. Ways to avoid probate ·
Joint Ownership
o Any assets held jointly with right of survivorship will not go through probate.
o Instead those assets will immediately go to the surviving joint-owner
o Think, real estate owned by a married couple with right of survivorship. The surviving joint owner takes full ownership outside of probate.
o The same can be true for jointly held bank accounts ·
Beneficiary Designations
o Designating beneficiaries on your investment accounts, retirement accounts and life insurance can ensure that those assets do not go through probate as well.
o Those assets pass to the named beneficiary outside of probate. ·
Living Trusts
o Living trusts are a way to avoid probate as well.
o I would say that most of my clients prefer to establish a living trust.
o A living trust is a legal document and entit
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:04):
You're listening to Simply Money, presented by all Worth Financial.
I'm Bob Sponseller, joined tonight by our estate planning expert,
attorney Dan Perry, with the law firm here locally of
Wood and Lamping. Dan, thanks for taking time with us,
and today we're going to talk about a very important
topic that I know a lot of people hear about
and need to deal with. And that's the whole topic
(00:27):
of probate.
Speaker 2 (00:28):
When I talk with clients about probate, you know, the
question I always get is, you know what happens to
my property when I die? Well, after you pass away,
all the property that you own and the debts that
you have must be administered through a public court process
called probate. And the word probate is actually a Latin word,
(00:49):
and you know, us lawyers, we always have to use
Latin phrases for everything. It means to prove. And you see,
for title to your property, you know, whether that's your home,
your car, or bank accounts to change to your heirs
and other family members, a probate process must occur.
Speaker 1 (01:07):
And what is that process?
Speaker 2 (01:08):
Dan?
Speaker 1 (01:09):
In practicality, what what happens? You know, just in layman's terms,
practically when somebody has to go through this whole process
called probate.
Speaker 2 (01:18):
What happens well, probate is a public court proceeding and
all of your assets, property, and other debts are listed
in public court documents. There are a number of court
documents such as an inventory of assets and accounting of
all the transactions, and those are filed with the courts.
(01:42):
People go to a number of court hearings in a
probate case, and at the end of that case, the
assets which remain are distributed to the family members, either
according to a will or according to state law, after
all debts have been paid. I use the example of
let's imagine for minute, Jane she passed away owning a
(02:02):
home and bank accounts. In order for Jane's children to
receive the home in the bank accounts, Jane's children have
to go through a probate court process before those assets
can even be transferred.
Speaker 1 (02:16):
All right, sounds like something we want to try to
avoid if at all possible. And I know we talk
about avoiding probate with our clients all the time. Dan,
as you advise clients in your in your practice, what
are some of the things that you're advising your clients
to do to avoid this whole situation altogether.
Speaker 2 (02:36):
Well, there are a variety of ways to avoid probate.
One way is with what's called joint ownership. Now you
heard me mention at the beginning of the segment that
any assets you own in your individual name, for title
to change hands, it has to go through probates. Well,
that doesn't apply for jointly titled assets. So, such as
joint owning, properly jointly with the right of survivorship, those
(03:01):
assets immediately go to the surviving joint owner. And a
perfect example of this would be you know, your home
owned by a married couple with rite a survivorship, the
surviving joint owner is going to take full ownership of
that house outside of probate. And the same is also
true for jointly help bank accounts as an example. Another
(03:21):
way is what's called beneficiary designations, and those would be
people that you designate to receive certain accounts such as
investment accounts, retirement accounts, and life insurance. A properly completed
beneficiary designation on accounts will ensure that those assets go
directly to the beneficiary outside of probate. And those are
(03:44):
what we call non probate assets.
Speaker 1 (03:46):
All right, this is a good time to bring up,
you know, excuse the interruption, Dan, But we see this
all the time in our office. People think, you know,
I've done my will, I've done my power of attorney,
I might even done a trust, but they completely forget
about the fact that their iras qualified plans, life insurance
policies don't even go through probate. They pass through beneficiary,
(04:08):
the beneficiary process, and a lot of people haven't reviewed
those beneficiary designations for years and things can change, and
that people people are surprised, you know, to learn that.
Do you find the same thing. People are just surprised
about how this works and doesn't work with respect to
retirement plant assets in your practice.
Speaker 2 (04:29):
Absolutely, I see it all the time where we are
actually having to probate a retirement account because the beneficiary
listed was either blank or the person had passed away.
And if there's no beneficiary listed, then you have a
non Traditionally, a non probate asset that would go directly
to the designated beneficiary is now going to go through
(04:51):
probate and be stuck in that probate core process that
can take anywhere from six months to two years or
longer to get for a family to get through.
Speaker 1 (05:00):
Wow. So I mean again, this is an easy situation
to avoid if you've done the proper planning right. So
what's what's some of the best advice you could give
folks out there who may not have done this kind
of work and haven't thought about it for a while.
What's your advice to folks out there as you think
about probate? What do you need to be doing to
(05:22):
kind of get your proverbial ducts in a row?
Speaker 2 (05:24):
So? Well, you know, one question I always get is
people would say, you know, I have a will that
a voice probate. Well that's not true. Will still has
to be proven legally valid in probate. When it comes
to getting your ducks in a row. I tell people
that does, see which assets you own, Is there things
that can be held jointly? Fill out those beneficiary designations
(05:48):
and make sure that they're completed and up to date.
And also consider establishing a living trust. I get asked
questions about trust all the time. What are they? What
do they do? Living trust? Any assets title to a
living trust? Also avoid probate.
Speaker 1 (06:05):
Yeah, and this is not a do it one time
and forget it type of proposition, right, Dan, I mean
we see clients all the time they did their legal work,
you know, ten fifteen, twenty years ago, they put it
away in a file and never looked at it again,
and things change. Talk about what you see, you know,
as you stay in contact with folks, maybe every three
(06:26):
to five years, like we should be doing. What are
some of the situations you see crop up that can
happen in a negative way if you just let this
stuff sit around for ten, fifteen, twenty years and don't
look at it.
Speaker 2 (06:40):
Yeah, so absolutely, estate planning is not a one time event.
You should review your estate plan at least every five
years or after major life changes. Some of the things
that I see are going through an estate plan, I
would see a backup executor named under a will and
it's a former son in law, for example, or a
(07:02):
spouse is named who is predeceased, and I see that
in beneficiary designations as well. The primary beneficiary on a
retirement account is also deceased. Or we've got property that
has been identified inside of a trust and inside of
a will that was sold many years ago. And so
that's not just major life changes need to be looking
(07:25):
every five years of these things. Also, the laws are
always changing, you know, they're always looking to change the
tax laws, for example, so it's important to stay up
to date. Speak with your Speak with your attorney review
these things. You know, generally every five years or after
major life changes.
Speaker 1 (07:42):
Great stuff from our estate planning expert Dan Perry from
the law for firm of Wood and Lamping. You're listening
to Simply Money, presented by all Worth Financial on fifty
five KRC the talk station
You're listening to Simply Money, presented by all Worth Financial.
I'm Bob Sponseller, joined tonight by our estate planning expert,
attorney Dan Perry, with the law firm here locally of
Wood and Lamping. Dan, thanks for taking time with us,
and today we're going to talk about a very important
topic that I know a lot of people hear about
and need to deal with. And that's the whole topic
(00:27):
of probate.
Speaker 2 (00:28):
When I talk with clients about probate, you know, the
question I always get is, you know what happens to
my property when I die? Well, after you pass away,
all the property that you own and the debts that
you have must be administered through a public court process
called probate. And the word probate is actually a Latin word,
(00:49):
and you know, us lawyers, we always have to use
Latin phrases for everything. It means to prove. And you see,
for title to your property, you know, whether that's your home,
your car, or bank accounts to change to your heirs
and other family members, a probate process must occur.
Speaker 1 (01:07):
And what is that process?
Speaker 2 (01:08):
Dan?
Speaker 1 (01:09):
In practicality, what what happens? You know, just in layman's terms,
practically when somebody has to go through this whole process
called probate.
Speaker 2 (01:18):
What happens well, probate is a public court proceeding and
all of your assets, property, and other debts are listed
in public court documents. There are a number of court
documents such as an inventory of assets and accounting of
all the transactions, and those are filed with the courts.
(01:42):
People go to a number of court hearings in a
probate case, and at the end of that case, the
assets which remain are distributed to the family members, either
according to a will or according to state law, after
all debts have been paid. I use the example of
let's imagine for minute, Jane she passed away owning a
(02:02):
home and bank accounts. In order for Jane's children to
receive the home in the bank accounts, Jane's children have
to go through a probate court process before those assets
can even be transferred.
Speaker 1 (02:16):
All right, sounds like something we want to try to
avoid if at all possible. And I know we talk
about avoiding probate with our clients all the time. Dan,
as you advise clients in your in your practice, what
are some of the things that you're advising your clients
to do to avoid this whole situation altogether.
Speaker 2 (02:36):
Well, there are a variety of ways to avoid probate.
One way is with what's called joint ownership. Now you
heard me mention at the beginning of the segment that
any assets you own in your individual name, for title
to change hands, it has to go through probates. Well,
that doesn't apply for jointly titled assets. So, such as
joint owning, properly jointly with the right of survivorship, those
(03:01):
assets immediately go to the surviving joint owner. And a
perfect example of this would be you know, your home
owned by a married couple with rite a survivorship, the
surviving joint owner is going to take full ownership of
that house outside of probate. And the same is also
true for jointly help bank accounts as an example. Another
(03:21):
way is what's called beneficiary designations, and those would be
people that you designate to receive certain accounts such as
investment accounts, retirement accounts, and life insurance. A properly completed
beneficiary designation on accounts will ensure that those assets go
directly to the beneficiary outside of probate. And those are
(03:44):
what we call non probate assets.
Speaker 1 (03:46):
All right, this is a good time to bring up,
you know, excuse the interruption, Dan, But we see this
all the time in our office. People think, you know,
I've done my will, I've done my power of attorney,
I might even done a trust, but they completely forget
about the fact that their iras qualified plans, life insurance
policies don't even go through probate. They pass through beneficiary,
(04:08):
the beneficiary process, and a lot of people haven't reviewed
those beneficiary designations for years and things can change, and
that people people are surprised, you know, to learn that.
Do you find the same thing. People are just surprised
about how this works and doesn't work with respect to
retirement plant assets in your practice.
Speaker 2 (04:29):
Absolutely, I see it all the time where we are
actually having to probate a retirement account because the beneficiary
listed was either blank or the person had passed away.
And if there's no beneficiary listed, then you have a
non Traditionally, a non probate asset that would go directly
to the designated beneficiary is now going to go through
(04:51):
probate and be stuck in that probate core process that
can take anywhere from six months to two years or
longer to get for a family to get through.
Speaker 1 (05:00):
Wow. So I mean again, this is an easy situation
to avoid if you've done the proper planning right. So
what's what's some of the best advice you could give
folks out there who may not have done this kind
of work and haven't thought about it for a while.
What's your advice to folks out there as you think
about probate? What do you need to be doing to
(05:22):
kind of get your proverbial ducts in a row?
Speaker 2 (05:24):
So? Well, you know, one question I always get is
people would say, you know, I have a will that
a voice probate. Well that's not true. Will still has
to be proven legally valid in probate. When it comes
to getting your ducks in a row. I tell people
that does, see which assets you own, Is there things
that can be held jointly? Fill out those beneficiary designations
(05:48):
and make sure that they're completed and up to date.
And also consider establishing a living trust. I get asked
questions about trust all the time. What are they? What
do they do? Living trust? Any assets title to a
living trust? Also avoid probate.
Speaker 1 (06:05):
Yeah, and this is not a do it one time
and forget it type of proposition, right, Dan, I mean
we see clients all the time they did their legal work,
you know, ten fifteen, twenty years ago, they put it
away in a file and never looked at it again,
and things change. Talk about what you see, you know,
as you stay in contact with folks, maybe every three
(06:26):
to five years, like we should be doing. What are
some of the situations you see crop up that can
happen in a negative way if you just let this
stuff sit around for ten, fifteen, twenty years and don't
look at it.
Speaker 2 (06:40):
Yeah, so absolutely, estate planning is not a one time event.
You should review your estate plan at least every five
years or after major life changes. Some of the things
that I see are going through an estate plan, I
would see a backup executor named under a will and
it's a former son in law, for example, or a
(07:02):
spouse is named who is predeceased, and I see that
in beneficiary designations as well. The primary beneficiary on a
retirement account is also deceased. Or we've got property that
has been identified inside of a trust and inside of
a will that was sold many years ago. And so
that's not just major life changes need to be looking
(07:25):
every five years of these things. Also, the laws are
always changing, you know, they're always looking to change the
tax laws, for example, so it's important to stay up
to date. Speak with your Speak with your attorney review
these things. You know, generally every five years or after
major life changes.
Speaker 1 (07:42):
Great stuff from our estate planning expert Dan Perry from
the law for firm of Wood and Lamping. You're listening
to Simply Money, presented by all Worth Financial on fifty
five KRC the talk station
Popular Podcasts
Las Culturistas with Matt Rogers and Bowen Yang
Ding dong! Join your culture consultants, Matt Rogers and Bowen Yang, on an unforgettable journey into the beating heart of CULTURE. Alongside sizzling special guests, they GET INTO the hottest pop-culture moments of the day and the formative cultural experiences that turned them into Culturistas. Produced by the Big Money Players Network and iHeartRadio.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.