Rhode Island Probate Attorney Jeremy Howe
One question frequently asked by clients is: Will my estate have to “go through” Rhode Island probate when I die? In order to answer this question, it’s helpful to understand what the court process is, and why it’s needed for some estates, but not for others.
Rhode Island Probate is the process whereby a judge reviews your Last Will and Testament after your death, and if there are no issues or disputes over your estate, the judge appoints the named executor under your Will so that he or she may “administer” your estate. The executor’s administrative duties primarily involve gathering your assets, paying any outstanding creditor claims filed or debts, paying final income taxes (and in some cases, estate taxes) and transferring your assets to your named beneficiaries.
In Rhode Island, Rhode Island probate court takes place in the local town or city hall where you resided at death; in Massachusetts, probate takes place in your county’s Rhode Island Probate & Family Court.
The process is begun when the named executor under the Will, usually with the help of an attorney, files your Will with the Rhode Island probate court and petitions the court to be officially appointed executor. Once your executor is appointed, he or she has the legal authority to transfer ownership in your property to the beneficiaries named under your Will.
So is this Rhode Island Probate process necessary when I die?
The answer is a relatively simple one, but the details aren’t so simple. The only property that must “go through” Rhode Island probate is property which was titled solely in the deceased person’s name at the time of his or her death. This means that jointly held property will “bypass” Rhode Island probate altogether. Thus, things such as bank accounts, real estate (see below for one notable exception), investments and automobiles which are owned together with a spouse, child or other person, will not be part of the probate process. Those types of jointly held property will automatically become individually owned by the named co-owner.
It is also possible for property to not be co-owned with another person during one’s lifetime, yet still avoid Rhode Island probate. For example, a bank account that has a “transfer on death” designation to a child will transfer to the child upon death once the child furnishes the bank in question with a copy of the deceased parent’s death certificate. Likewise, IRA, 401k and 403b accounts typically require the account owner to designate beneficiaries. So long as individual beneficiaries have been designated, those accounts too will bypass Rhode Island probate. However, failure to designate beneficiaries results in these accounts “defaulting” to one’s probate estate upon his or her passing.
Real estate may also be owned by one individual, but stipulate that upon that individual’s death, the property shall pass entirely to his or her child. We call this a “life estate deed.” Because a life estate deed names the “inheriting” child within the deed document, the child owns the real estate immediately upon the parent’s passing. (It’s worth noting that real estate may sometimes be co-owned with another individual, yet still become part of Rhode Island probate when one of the co-owners dies. This type of joint ownership is called “tenancy in common.” Real estate owned by tenants in common requires each individual co-owner’s share of the property to pass through Rhode Island probate when that co-owner passes away. At that point, the deceasing co-owner’s portion of the property becomes owned by his or her beneficiaries named under the Will.)
Another way to bypass Rhode Island probate is to create a trust. Trusts survive after the death of their creator. This means that a parent can create a trust and transfer ownership of his or her house and/or other assets to the trust, continue managing those assets as trustee while living, and upon death, be succeeded as trustee by a child or other trusted family member who can then takeover trust administration. It is typical, but not necessary, for trusts to terminate upon the death of their creator, at which point the trustee distributes the trust property to named beneficiaries.
It is possible to avoid Rhode Island probate entirely if one takes the proper steps during his or her lifetime. Using a combination of estate planning strategies that range from simple to complex, one can ensure that his or her family members have little to no “heavy lifting” to do when winding up the estate.