Archive for January, 2011

What is a probate estate?

Thursday, January 13th, 2011

Your Will tells the world how you want to distribute your probate estate.  So, the question becomes ‘What is a probate estate?’

In general, your probate estate consists of anything you own the instant after your death.

Your probate estate does not include life insurance proceeds where the beneficiary of the policy is a person or anything other than ‘the estate of the insured’ because an insurance policy is a contract with the insurance company to pay the proceeds to your beneficiary after your death.  So, the instant after your death, the proceeds now belong to the beneficiary.

Your probate estate does not include property you own with someone else that is titled ‘jointly with right of survivorship’ because ownership of your interest in that property is automatically transferred to the other owner at the instant of your death.

At first glance, it would seem that the best option would be to re-title your assets (e.g., home, bank accounts) to be held jointly with right of survivorship.  However, there are big potential problems with that option that should be considered before you make your final decision.

You should contact an estate planning attorney for more information.

Do I need a Will?

Wednesday, January 5th, 2011

A Will is a written statement signed by you that tells everyone how you want your ‘probate estate’ to be distributed after you die.  It doesn’t mean anything until after you die and you can change the terms of the Will, or even revoke your Will, up until the instant of your death.

If you have no probate estate when you die, then you really don’t need a Will because you have nothing to distribute.

If you die with things in your probate estate and without a will, the law of the state where you die will make the determination of what happens to your things.  In Virginia, the laws distribute the contents of your probate estate to your family members in a manner that the lawmakers decided was most likely to be what the majority of people would want.  This is sort of a ‘default Will’ and you don’t need to do anything to use this process.

However, if you want to make sure that your estate is distributed the way you had planned, then you need to draft a Will.

Contact an estate planning attorney for more information.