One of your main estate planning goals should be to keep your estate completely out of the jurisdiction of the probate court when you pass away. When an individual dies, his/her assets are separated into two categories: non-probate and probate. The difference between these two categories is simple but extremely important. Non-probate assets contain an instruction for distribution upon the owner’s death. Probate assets do not and require a court order to officially distribute the asset upon the owner’s death. In order to keep your estate out of probate and entirely in the non-probate category, steps should be taken to actively place instructions on your assets. If not, your Last Will and Testament acts as an instruction to the probate court for any asset(s) that enter its jurisdiction. Contrary to popular belief, your Will only applies to the probate assets and if your Will is being enforced, your estate requires a probate administration.
Why do you need a Will if your estate plan is created to avoid probate? The answer is simple – everyone should have a backup plan. We are human and make mistakes. If an asset slips through the cracks and becomes a probate asset at your death, your Will is needed to tell the probate court who should receive the asset. For example, if an asset was sold and replaced, it is possible the owner may forget to affirmatively act to ensure the new replacement assets avoids probate at their death. Or sometimes people have no knowledge that they own an asset during their life, and it is discovered when they pass away. For these situations and situations like them, everyone should have a Will to serve as the backup instruction.
If you pass away without a will, your control over your hard-earned assets falls away and they are distributed pursuant to the default distribution laws of Ohio, which may or may not align with your wishes and intentions for where your assets end up after your death. Take small steps now to protect your estate later. Create a plan with the goal of avoiding probate, but prevent this situation by creating a backup plan – a Last Will and Testament.
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