Addressing A Few Common Probate Misconceptions

Some of the most common questions that we hear when someone calls our office after losing a loved one are:

• My brother had a Will, so why do we have to go through probate to divide his property?
• My brother had a Will prepared leaving everything to me, so why does his girlfriend get his life insurance?
• My brother named me as Executor in his Will, so when he died, I became Executor, right?

Unfortunately, as with many things in the law, it is not that simple…

What is a Will and what does it cover?

A person's Will contains their written wishes of how they want their assets to be distributed upon their death. The Will pertains to those assets that are considered “probate assets”.  Probate assets, whether it be real property or personal property, are assets that are titled in the name of the decedent alone.

Assets owned by the decedent (the person who died) that are titled POD (Payable on Death), TOD (Transfer on Death), JTWROS (Joint with Rights of Survivorship) or have a Beneficiary Designation are considered non-probate assets and are not distributed in accordance with the terms of the Will of the decedent.  Instead, they are governed under the terms of the beneficiary designation. Simply put, “how assets are titled overrides the distribution clause in a Will”.   Therefore, just because you have been left all of a decedent's assets under the terms of their Will, that doesn't mean that you are entitled to receive all of the financial assets that they owned at the time of their death.

There are situations where a non-probate asset would be paid to the decedent's estate and then distributed in accordance with the provisions of the Will.  This happens when a beneficiary of a non-probate asset predeceases the decedent and there is no “contingent beneficiary” named. The asset is then distributed to the decedent's estate and becomes a probate asset. For your own personal estate planning, this is why it becomes very important to update beneficiary designations when a beneficiary passes away.  We recommend reviewing your beneficiary designations on a regular basis.

What is Means to be Nominated as An Executor

Next, just because you are nominated as the Executor of a Will, it doesn't mean that you are automatically the Executor.  In order to collect the “probate assets”, the original Last Will and Testament must be filed with the Probate Court, along with the initial forms required to open an estate. The filing of the Will with the court does not, in and of itself, appoint you as the Executor. An application to appoint you must be completed and filed. Once the Court receives all of that information, they will review the application then officially appoint you as the Executor.  Specifically, the Court appoints you by way of issuing Certified Letters of Authority. This Letter of Authority is the document required by financial institutions to identify you as the Executor of the estate and not the Will itself. “The Will is the vessel that identifies the wishes of the testator and who they want to serve as the Executor, but the mechanism to accomplish this is through the filings with the Probate Court.”

It Matters How Your Assets are titled and that you have a Will!

As you can see, how assets are titled, (i.e. vehicles, bank accounts, brokerage accounts) are the most important tool in avoiding probate and ensuring that the assets go directly to the individuals that you designate.

It is of utmost importance to have a well drafted Will. A good way to think about a Will is as a failsafe way of insuring that any asset(s) that may have fallen through the cracks and end up in a decedent's name alone at their death, will be distributed to those beneficiaries that the decedent intended by way of the Will. More often than not, the decedent may have thought while they were alive that they had designated beneficiary(s) on all of the assets, but may have forgotten about an asset.  This is common with assets like a Certificate of Deposit (“CD”) since monthly statements are generally not issued, or with a new bank accounts opened just before the decedent died, or as stated previously, the beneficiary predeceased the decedent and they did not think to complete new paperwork designating a new beneficiary.

Please contact us at Ibis Legacy Law, LLC at 216-991-6200 for assistance with getting your estate plan in order or for your loved one's probate estate administration.  If you prefer to send an email, you can reach our Probate Paralegal Tracy Stout at [email protected]] or Attorney Rebecca Yingst Price at [email protected].  We regularly practice in all Probate Courts in Northeast Ohio including Cuyahoga County, Summit County, Portage County, Lake County, Geauga County, Ashtabula County and Lorain County.  If you need help with a probate estate in another county of Ohio, we can help as well!

Disclaimer: This content is for informational purposes only and is not intended to provide, nor should it be relied upon as, legal advice, nor does the receipt of this content create an attorney-client relationship.