If everything my husband and I own together (property, cars, all banking, insurance policies, bonds, CDs...) is in both our names, and our wills designate each other as first heirs, will our estate still go into probate when one of us passes? We reside in Colorado.
100% worth the cost to pay for peace!
Think of it this way. When you create a Trust and move things into it these things are owned by the TRUST, not by you or your husband.
See a good trust and estate attorney to answer your questions.
You really need to find out the state-specific laws regarding wills, trusts and probate. And as you have often said here, Alva, and it's spot on advice, for legal answers you really need to seek legal advice rather than rely on an anonymous internet forum.
Note that some accounts, like individual retirement accounts, can’t be titled jointly, but may pass without probate if they have designated beneficiaries. Some assets don’t have titles and would go through probate. Some probatable estates are “small” and qualify for a state’s abbreviated process.
As always, if you want legal advice you can rely on, consult an appropriate attorney.
There may be contingencies you are not anticipating: future dementia in one spouse, remarriage and subsequent beneficiaries, simultaneous deaths, …
You say you have wills. Wills must go through probate but it is always a good idea to have wills. One of you may die before all assets are jointly titled or a beneficiary is named. Colorado has what is called small estate probate that is very simple. The estate must not contain any real property (i.e. land, homes, buildings, etc.) and, as of 2022, personal property must be worth less than $74,000.
Another issue: If you have creditors or anticipate having creditors, know that in Colorado property owned in joint tenancy is subject to the liabilities and creditors of all the joint tenants. Colorado also has a statute that says non-probate transfers are subject to creditors.
Divorce can be an issue. In Colorado, divorce automatically revokes the ex-spouse as a beneficiary of the will. However, divorce can work differently when assets are titled in JTWROS or ex-spouses are named beneficiaries.
If an experienced estate planning attorney recently drafted your estate plans and explained the pros and cons, that's one thing. If you did it on your own, Midkid is so right. Hire an estate planning attorney to go over all your documents and discuss your objectives.
As always, these are suggestions and not legal advice. See a licensed, estate planning attorney.
I was told long ago not to have our cars in both names. If in both names you can be sued for everything you own. If only one spouse listed as owner, you can only be sued for half.
I don't have CDs so not familiar with if there can be two owners. With our IRAs, we each have our own and we are each others beneficiaries. Same with our investments, I am beneficiary. This way there is no probate. My girls come after me and again there will be no probate.