The Elrod Firm


Why do we have to go through a probate?

Something I often hear is, “We didn’t have to deal with probate when dad died—why do we have to do it now that mom passed away?”

Probate is a court process that is necessary when assets are titled solely in the name of a person when he or she dies. Probate issues often arise with real estate, but it can also be an issue with assets such as bank accounts, investment accounts, life insurance, stocks, and vehicles.

One way to avoid probate is to jointly own assets, which is common with married couples. When an asset is jointly owned and the first owner dies, the asset is automatically owned by the surviving owner without probate. Often children don’t have to worry about probate when dad passes away, but it becomes necessary at the death of mom, because mom was the sole owner of the assets when she, as the second to pass, dies. For this reason, many families do not have to deal with probate when the first parent dies but have an unpleasant surprise when the second parent dies.

“But mom has a will—doesn’t that avoid probate?”

A will is not a document designed to avoid probate—it is actually written in anticipation for probate. A will is a set of instructions for the probate judge on how you would like your assets distributed when you pass away. A will does not change the ownership of an asset while someone is living. So, when mom passes away still owning her assets a probate proceeding is necessary so that someone, an executor, has authority to transfer ownership of those assets out of her name. It is better to have a will than to have no estate planning document at all, because a will allows you to designate who receives your assets and how the process should be managed, and it doesn’t leave that decision up to Arkansas intestacy laws. But having a will does not avoid probate.

One of the main goals for most of our clients is to avoid probate with proper planning. Although joint ownership is one method to avoid probate and works well for married couples, it has several disadvantages outside the marriage context. We usually recommend that our clients utilize a trust for probate avoidance because it offers the best protection for their beneficiaries and ensures that their wishes are properly carried out.

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