Will a will prevent probate? A surprisingly common misconception is the idea that having a valid will in place prevents one's estate from going through the probate process. In fact, leaving property to your loved ones via a last will and testament guarantees that at least a part of your estate will have to go through probate. Probate is the process of authenticating a will (if one exists) and distributing assets according to its terms.
What having a will does prevent is an estate being distributed according to Ohio's intestacy laws. These laws are intended to distribute the property of a deceased when there is no will or other valid estate plan. Intestacy laws try to approximate what most people would do with their property had they had an estate plan. Typically, people would provide first for their spouse and children, and then for more distant relatives. Like other laws that are intended to cover a wide range of people, inte… Read More
One common way that people try to avoid the probate process is by holding assets jointly with other people, such as a spouse or adult child. If the documents creating the joint ownership are executed properly, the asset will pass directly to the surviving joint owner when one of the owners dies.
This is good news for most people, but unfortunately it usually doesn't eliminate the need for probate. What joint ownership of a bank account may do is help reduce the size of the probate estate so that it qualifies for the small estate process.
Often, however, individuals with bank accounts large enough to potentially affect whether their estate is considered "small" have enough other assets for their estates to require probate. A better way to avoid probate altogether is with the use of a living trust and/or other estate planning tools.
Regardless of whether having a joint bank account lets you avoid probate altogether, yo… Read More
For many people, avoiding the probate process and having their assets pass outside of probate after their death is a priority. Ordinarily, having a life insurance policy does not interfere with that goal. In most cases, the proceeds of a life insurance policy pass directly to the named beneficiary without any probate involvement.
However, there are circumstances in which life insurance benefits must go through probate, which can delay payment to loved ones and even reduce the amount of funds available through the policy. Fortunately, there are relatively simple ways to avoid these situations, and ensure that funds are available for you loved ones when they need them.
What happens if you have someone named as the beneficiary of your life insurance policy, and your beneficiary dies? The answer depends on when the beneficiary dies. If they die before you, the policy benefits will go to any co-primary be… Read More
Sometimes life seems more complicated than it needs to be. You have an asset, like a bank account. You know who you want to have the money in that account when you die. Why should you have to identify that account in your will and specify who should get the money in it? Why should they have to wait for months for probate to be completed to access the funds you meant them to have?
You could always make your intended beneficiary a joint owner of the account while you're alive. That would keep the account assets out of probate. But that comes with its own burdens: a joint owner of the account has equal access to the funds in it, even if those funds were provided by the other joint owner. Joint accounts are fine in some situations, but problematic in others.
There's got to be another way—and there is. It's called a transfer on death (TOD) account, and it bypasses both probate and the issue of an intended beneficiary dipping into funds earlier than you'd prefer.
Transfer on death accounts, sometimes also called payable on de… Read More
One of the simplest ways to keep an asset out of probate is to title it in such a way that it is not subject to the probate process. In most cases, your access to or use of the asset won't change—only the way the asset is transferred after your death.
It's important to be aware of how using title to an asset can keep it out of Ohio probate, and the benefits and risks of transferring assets in this way.
In some cases, changing the way an asset is titled can be accomplished with minimal assistance. One example of this involves bank accounts. If you have $100,000 in a bank account in your name, and you want it to pass to your adult son after your death, you can go down to the bank and convert the account into a joint account, titled in both your names. When you die, your son will become sole owner of the account so long as survivorship rights are specified in the document creating the joint ownership. Brokerage accounts, like bank accounts, can be jointly titled.
Just remember, if your son becomes incapacitated or dies first, probate will likely be necessary. Also, even if you die first, probate wil… Read More