Clients often think that having a Will avoids probate. Just the opposite is more likely true. Having a Will helps direct what you want to have done with your assets on death, but usually a probate is required to have a Personal Representative (i.e. Executor) appointed by the court and vested with the power to follow your directions and legally effectuate the transfer of the assets from your name to the name(s) of your devisees. This process is what is known as “probate”. If you have assets titled jointly with others or that name others as a “pay on death” (POD) or “transfer on death” (TOD) beneficiary, then those assets will pass to the joint owner or beneficiary outside your Will and those assets do not require probate. So, the necessity of probate is determined by the title arrangements of your assets. It is entirely possible for some of your assets to be subject to probate and for others to avoid probate and pass outright to joint owners and/or beneficiaries. When a loved one dies it is important to discuss the necessity of probate with an attorney and to take asset information with you to your appointment if possible so your attorney can help you determine whether or not a probate is necessary and, if so, can help guide you through the steps the probate laws require.
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