Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in Rhode Island for guidance on your specific situation.
Detailed Answer
How Real Property Passes Outside of Probate
In Rhode Island, certain ownership structures and legal tools allow real estate to transfer automatically at death without probate court involvement:
- Joint Tenancy with Right of Survivorship: When two or more people hold title as joint tenants, the surviving owner(s) inherit the decedent’s share immediately. See R.I. Gen. Laws § 34-1-3.
- Tenancy by the Entirety: Married couples may hold property this way. Upon one spouse’s death, the property passes in full to the survivor. See R.I. Gen. Laws § 34-1-5.
- Transfer-on-Death Deeds: Under R.I. Gen. Laws § 34-6.1-1, real estate owners can record a deed naming a beneficiary. The beneficiary gains title automatically when the owner dies, bypassing probate. See R.I. Gen. Laws § 34-6.1-1.
- Revocable Living Trusts: An owner creates a trust, transfers real estate into it, and names successor trustees and beneficiaries. At death, the trustee distributes property per the trust terms without probate.
Why Probate Is Required for a Will
A will is a legal document stating how a person’s assets—including real property—should be distributed at death. Even if a will directs transfer of real estate, the probate process must occur to:
- Prove the will’s validity in Rhode Island Superior Court. See R.I. Gen. Laws § 33-15-1.
- Appoint a personal representative (executor) to gather assets, pay debts and taxes, and distribute property per the will.
- Provide legal notice to creditors and heirs to protect the estate from future claims.
When Probate May Still Apply
Even if some assets pass automatically, any property held solely in the decedent’s name—such as a home without a joint deed or trust—must pass through probate. In Rhode Island, small-estate procedures may simplify administration if the total value of probate property falls below $40,000. See R.I. Gen. Laws § 33-23.1-1.
Key Differences at a Glance
- Automatic transfers avoid court fees and delays but require proper title planning before death.
- Probate of a will confirms the decedent’s wishes and resolves creditor claims but involves court filings, timelines, and fees.
- Planning tip: Combine automatic-transfer tools with a pour-over will to ensure all assets go into a trust if not already titled correctly.
Helpful Hints
- Review your property’s title. Identify joint tenants or TOD deeds.
- Discuss a living trust with an estate planning attorney to avoid probate.
- Locate and safely store your will. Inform your executor of its location.
- Check small-estate rules if the probate estate is under $40,000.
- Consult a Rhode Island attorney if you have complex assets or potential will contests.