Understanding Probate: Why Your Home May Go Through the Process

By Carolyn S. Smith, Esq.

If you own a home and pass away, your home may go through the probate process if it is part of your probate estate. The probate process is a legal procedure that occurs after someone's death to administer and distribute their assets, including their real estate, according to their will or the laws of intestacy (when there is no valid will).

The home will go into probate if:

• You Have No Living Trust: If you do not have a living trust or other estate planning arrangements in place, your home will typically be subject to probate. A living trust allows you to transfer assets, including your home, directly to your chosen beneficiaries without going through probate.
   
• You Are The Sole Owner: If you own the home in your individual name without any co-owners or beneficiaries designated, it becomes part of your probate estate. Property owned jointly with rights of survivorship or held in trust, generally avoids probate.
   
• You Have No Beneficiary Designations: Some assets, like retirement accounts or life insurance policies, allow you to designate beneficiaries. If you haven't named beneficiaries for your home (e.g., through a Transfer on Death Deed or Beneficiary Deed), it most likely will have to go through probate.
   
• No Transfer-on-Death (TOD) Deed: In some states, you can use a Transfer-on-Death Deed , which is also called a Lady Bird Deed or Beneficiary Deed to name a beneficiary for your home. This allows the property to transfer directly to the beneficiary without probate.

During probate, the court oversees the process of paying off debts and taxes and distributing assets to the rightful beneficiaries. The process can be time-consuming, costly, and subject to public record, which is why many people opt for estate planning strategies like living trusts, to avoid probate and ensure a smoother transfer of their assets to their loved ones.

It's important to consult with an estate planning attorney to determine the best strategy for your specific situation and to ensure your wishes are carried out efficiently and effectively after your passing. Please reach out to us at Ledbetter Law Group, if we can help you be better prepared for the future.