If you were to die without a will or trust, your assets may or may not be subject to a probate administration. And it really depends on how you have the assets titled. All assets are potentially subject to a probate but oftentimes the assets will have ways in which a probate can be avoided. For example, if you have your assets helds in joint tenancy form, they will avoid a probate. Common example of that is our bank accounts that are held with other joint account holders so the asset will pass to the surviving joint tenant.
Another way to avoid a probate is through beneficiary designations. A common example there are your retirement accounts potentially or investment accounts. They have beneficiary designations often. If you were to have a beneficiary listed and they were no longer alive and you didn’t have other beneficiaries, that asset could be subject to a probate.
Another way to avoid a formal probate is if all of your probate assets are less than $150,000. There’s a small estate affidavit for that. If your spouse has passed away, you can do what’s called a spousal property petition. So that does go through the probate court but it’s much faster than a formal probate.
Another thing you have to be aware of is that your assets will go to your heirs. Who your heirs are, it’s a formula in the probate code, but it’s essentially your closest relatives. So your first heir would be spouse and then your next closest relatives are your kids if you have any. If not, then up to your parents and then up to your brothers and sister and on and on. And the potential problem there is that you could have an heir that you would not want your property to go to.
So it’s very important that if you have those concerns to either create a will or trust and the circumstances regarding whether there would be a probate or not, it’s very hard just to say generally so you should have your estate looked a licensed attorney. And they can give you an assessment of what to do with your estate.