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Does property always have to go through probate?

For executors, one of the things that can keep a person up at night is the prospect of probating a will. This is the name given to the process of transferring legal possession of property from one person (the deceased) to another (a person identified in the will). It should be known, though, that the probate process may only apply to assets that can be controlled by the probate court. In essence, there are a number of assets that do not have to be transferred through court order because they are not necessarily transferred exclusively through a will.

This post will identify a few of these assets.

Life insurance proceeds - If you have distributions to beneficiaries from a life insurance policy, these assets do not have to pass through probate. Essentially, once the insurance company has proof of the death, and certain documents are signed, the assets can be transferred to the beneficiaries.

Property held in joint tenancy - By operation of law, the deceased's interest in property held in joint tenancy would automatically pass to the other surviving tenant.

Property held in trusts - Likewise, property held in a trust (i.e. living trust, revocable trust, etc) would pass from the deceased to the beneficiary. Of course, the trustee would likely be responsible for managing the transfer.

Despite these examples, it is not uncommon to find disagreements over what may or may not be eligible for probate, especially if there is a dispute over who the property should be distributed. If you are experiencing this, an estate administration attorney can help. 

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