How To Determine Where To Open a Probate Estate

Estate Probate Process

Probate is the legal process that validates a will, appoints an executor, and distributes estate assets after someone dies. Any estate assets must be probated before they can be distributed.

Depending on the circumstances, probate can be quite simple, not even necessary, or quite complex. Probate estates are commonly opened in a variety of places. However, it depends on the individual circumstances.

For help determining where to open a probate estate, contact a skilled local estate planning attorney at the Wood Law Group.

My Loved One Died. Does a Probate Estate Need to be Opened?

First, it is necessary to determine whether probate is necessary before determining the probate location. In this case, the financial and legal circumstances of the decedent play a significant role. 

Any property distributed in terms of a will should go through the probate process. When the value of probated assets is really low, most states provide a simplified probate process. Also, probate is not required for assets held in trust or jointly owned with a designated beneficiary.  

Depending on the terms of a life insurance policy, the proceeds from life insurance do not have to go through probate and go to the beneficiary. A skilled probate attorney can help you determine whether life insurance proceeds are or are not subject to probate.

Tangible Versus Intangible Assets

Tangible and intangible property are treated differently in probate proceedings. Tangible personal property or assets (real property) are assets personally owned by the decedent that physically exist and can be touched or held, such as real estate, automobiles, art, and jewelry.

Intangible assets such as patents, copyrights, financial investment products, retirement accounts, intellectual property, and sometimes even bank accounts in a financial institution cannot be physically touched.

Bank accounts are considered tangible assets in some states since they can be emptied and the money can be held, thus qualifying them as tangible assets.

How Do I Know Where to Open a Probate Estate?

The basic rule is you need to initiate probate with the probate court at the place where the decedent lived just before passing. This place is known as the domicile or residence of the deceased.

The domicile is where the decedent last lived with no intention to leave. Evidence to prove domicile includes state driving licenses and passports.

Probate in Two or More States

It may be necessary to carry out more than one probate when the decedent owned tangible assets in more than one state. There might be different laws that apply in each state.

The property may need to be probated in a non-US jurisdiction if it is owned outside the United States. Before proceeding with probate, it is important to determine where the property is located.

When You Don’t Need Probate at All

Proper estate planning can prevent most (or all) of your assets from going through probate. It is possible, for instance, to create an estate trust that holds specific assets. Property owned by the trust that names a beneficiary is not subject to probate.

A living trust is created for this purpose and can be used to distribute assets upon your death. Trusts can even be used to pay a monthly beneficiary payment by the Trustee from the trust bank account after you have died.

It is vital to examine the ownership type rather than the asset type to determine whether an asset is subject to probate or non-probate. Non-probate assets include the following:

• Jointly held checking and savings accounts

• Joint tenancy in real estate (for example, with a surviving spouse)

• Investment accounts and other brokerage accounts with beneficiary designations.

• Retirement plans, IRAs, and annuities with a payable-on-death designation

If an asset doesn’t fit into any of the categories above, it will require probate unless the deceased took additional steps to avoid probate, such as with a living trust.

You Can Avoid Complications With a Living Trust

Assets held in irrevocable living trusts are not subject to probate. A living trust is revocable, which means it can be changed and is highly flexible. Properties must have been formally transferred into the trust, or the trust will not be able to serve the intended purpose.

Dealing With a Deceased Estate and Probate?

Perhaps you are living beneficiaries dealing with issues around a loved one’s estate or the probate proceedings. You will soon realize that the field is pretty complex and can be confusing. Different state and even country rules may apply. Some states treat the same assets differently.

An estate planning attorney in Las Vegas can offer you helpful advice. Call our law firm at (702) 388-1711 for a free consultation. Confidentiality is assured through the attorney-client relationship.