A loved one has died. How do you know if a probate proceeding will be needed?
The answer is really simple, although gathering the information needed may take some work.
Let’s use a Certificate of Deposit at a bank as an example. If the CD was in the decedent’s name alone, and there is no Payable on Death, or “POD” designation, then probate will likely be necessary. If the CD is jointly titled, AND the interest is a “survivorship” interest then the CD becomes the property of the co-owner. If there is a POD designation, then it becomes the property of the person so designated. Of course, these examples assume that the beneficiary or co-owner if living.
In the case of life insurance or retirement plans, the money goes to the beneficiary if there is one. If there is no named beneficiary who is living, then probate will be necessary.
The same rules apply for real estate, vehicles, etc. However, as to real estate you must be certain that the property, if co-owned, is an interest that passes to the survivor. As between husband and wife, there is a strong presumption that this is the case. As between others, such as a parent and a child, the deed must have the letters “JTWROS”, or the words “Joint Tenants with Rights of Survivorship”, or something similar. If a “Beneficiary Deed”, or “Transfer on Death” deed has been recorded, then it’s provisions will prevail if the beneficiary is living, and there will be no probate.
Put another way, if someone can access or obtain the particular asset or property in question, then there is no probate. Otherwise, you are out of luck.
If you have questions or need help send us an email.