When a loved one dies, it can be a very difficult time for the family. In addition to the emotional turmoil, there are a series of legal actions that need to take place to settle the deceased’s affairs. One of those legal actions is formally assessing the last will and testament to ensure your loved one’s final wishes are honored. The Will contains instructions about what to do with their personal and professional assets and to whom in the family they should belong to now. For these bequeathments to be considered legal, they must go through rigorous analysis from a legal division called probate court.
What Is Probate Court?
Probate is the legal process of handling a deceased person’s belongings. The belongings can be tangible things like cars and houses or intangible things like bank accounts and mortgages. Before they died, the deceased would have drafted a will that reflected their final wishes and named an executor of the will to carry them out. In probate court, the will is verified, the ownership of the assets are transferred to the decedents, and any outstanding debts are paid off.
Is Probate Always Necessary?
Most of the time, probate is a necessary process in Mississippi. If there are expensive assets that need to change hands after a death legally, probate will be required. There are certain situations, and even certain assets, that can avoid probate entirely. For instance, anything with a beneficiary can avoid probate. A retirement plan, a life insurance policy, and even a bank account can be directly transferred to the beneficiary upon death. This is recommended when your family will need immediate funds after you die. Transferring your accounts this way ensures that your family will have the money they need while the rest of your assets go through probate court.
Another instance in which probate is unnecessary is when dealing with a smaller estate. If the estate does not meet specific financial requirements, a transfer can be handled in simpler, less time-consuming ways. For probate to be avoided entirely, your estate would have to:
- Hold no real estate assets worth $50,000 or more
- Hold no physical assets totaling $500 or more
- Hold no bank accounts totaling $12,500 or more.
Furthermore, any asset with shared ownership (like a home owned by a husband and wife) does not need to go through probate. It simply becomes possessed by the surviving party.
What Assets Go Through Probate?
Most tangible and intangible assets must go through the probate process unless otherwise mentioned above. This list of probate assets includes:
- Single name bank accounts or investment accounts
- Real estate
- Art and collectibles
- Cash and coins
- All other personal property like the contents of a home
Non-probate assets include anything that is transferred automatically by law, contracts with a named beneficiary, and anything named in a trust.
How To Avoid Probate
Most people try to avoid probate, so their assets are transferred quickly to their beneficiaries without a lengthy court proceeding. This can be accomplished in a variety of ways. As stated above, any account or contract with a named beneficiary will be transferred immediately upon your death. The trick, then, is to set up your estate so that most of your assets can avoid probate. This can be achieved by taking time to name a beneficiary on all of your accounts, transferring assets to joint ownership, or by gifting cash to your loved ones before you die. But the most common way of avoiding probate is by setting up a living trust.
A revocable living trust is an estate planning tool used to transfer assets upon your death quickly. You establish the trust while you’re alive and change ownership of your assets to the trust. For instance, the title to your vehicle or deed to your property would now list the owner as “The Revocable Living Trust of John Doe.” This type of trust can be changed or canceled anytime and can also hold precise requirements or caveats. Assets may only be transferred once a family member turns 18, and only then for use in college. The possibilities are endless, and all living trusts will avoid probate court.
If you have more questions about the probate process, or you’re ready to start your own Will or trust, call The Law Offices of Rusty Williard at (601) 824-9797.