Whether you’re beginning the process of estate planning, or attempting to get a handle on the estate of a decedent as an executor, it is quite common to wonder what assets need to go through probate. It’s easy to see why so many people fret about probate, as the process can, in some cases, be stressful and time consuming.
Put simply, probate is the legal process wherein a court oversees the management of a deceased person’s assets in order to ensure that all debts are paid and that all property is successfully transferred to the appropriate parties. In some cases, this process may be required even if the deceased has left a last will and testament.
Not all assets are required to go through probate, however – meaning that this process is sometimes simpler than some people anticipate. Often, big ticket assets – real estate, motor vehicles, and financial accounts - avoid probate by virtue of being jointly owned.
Broadly speaking, there are two types of joint ownership that tend to crop up. One typically avoids probate, and the other does not, which can make things a bit more complex.
Generally, if an asset is held in joint tenancy, also called joint tenancy with rights of survivorship, it will not have to go through probate. In this style of joint ownership, two people own the asset together, usually in equal shares. In such cases, when one owner dies, the title passes automatically to the remaining owner. To ensure that this automatic transfer is carried out smoothly, it must be clear in the title documentation that survivorship is intended.
Another common type of joint ownership is known as tenancy-in-common; in this situation, the decedent’s interest typically does have to go through the probate process.
When multiple parties own an asset as tenants-in-common, they have more control over how their individual shares are handled. Broadly speaking, if you have a tenancy in common arrangement, your share will be distributed to your chosen beneficiaries as directed in your will. It won’t pass to the other owner (or owners) unless you clearly direct it to be so in your will.
In many cases, if there is ambiguity or confusion whether survivorship rights were intended, tenancy in common will be assumed, requiring the asset to go through probate.
So, with all that being said, remember that there are all sorts of other assets that do not have to go through probate, with the proper planning and preparation. In most cases, probate is only necessary for assets owned solely in the name of the deceased person, or for those that are owned jointly as tenants in common.
Have any more questions about probate? Looking for guidance at a difficult? Chicago Probate Law is here and always ready to help.
We can assist with the basic steps of administering the probate estate, including matters of heirship, wills and trusts, independent or dependent administration, estate accounting, and distribution.
Beyond administering the probate estate, we will assist in transferring or clearing title to real or personal property, as well as collecting assets and disposing of any property that you do not want to keep.
In short? We’re here to provide peace of mind, at every step of the way. Don’t hesitate to reach out for more information!
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