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Family Law: What Is Probate and Why It’s Important To Know

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Most people refuse to think and talk about death, but unfortunately, it is something we cannot avoid. The best thing you can do for yourself and your family is make certain arrangements for how your money and properties will be distributed once you pass.

There are two options you can choose from: trust and a will. Choosing to have a will is a good option even with a trust. If settle on a will, then it is also essential to have a fundamental understanding of the process of probate.

What is Probate?

Probate, in its simplest terms, is a procedure that allows an individual to transfer their properties to living beneficiaries upon their death. Further, probate is a system of registering and proving in court the last will of a departed individual. When a person passes, someone else has to manage their estate. The local court reviews documents and materials that correspond to the distribution of debts and assets. Frequently, probate is carried out whether the deceased leaves a will or not.

An important part of the law which governs inheritance is the probate. As perceived by the government, an essential aspect of probate law is regulating any taxes and debts that are present in the estate. Although there are methods to avoid probate, it is a crucial concept to comprehend for the person leaving the estate (testate) and for the beneficiary who will acquire the assets.

Typically, it is mandatory to undergo probate under the general supervision of the court before the decedent’s properties can be legally allocated to his/her beneficiaries. Without the process of probate, complicated legal predicaments may arise.

Why Is Probate Necessary Even With A Will?

The first issue that needs to be settled during the process of probate is the clarification of property title of an estate. Even if a will exists, all properties owned by the decedent upon their death is part of the estate. Thus, items subject to probate include CD accounts, pension accounts, bank accounts, and the decedent’s personal property, such as furniture, artwork, and jewelry.

Further, probate does more than distributes property. It also deals with the legal transfer of the title to the property. For instance, if a deceased family member such as an uncle leaves his home to his niece then the probate court orders the issuance of the title to be put in the niece’s name. The niece will then manage the property legally. Nevertheless, until the will has been validated and established, the title remains clouded as the legal transfer has not been made.

Five Reasons Why Probate Is Necessary
  1. Probate is necessary if there were no wills. The probate process determines the beneficiaries and allocates the decedent’s title and assets to property. Further, so that assets of an estate can be distributed properly to the beneficiaries, a valid will must also undergo probate.
  1. Probate is necessary when problems arise from an existing will. A common issue could be that the submitted will is not considered as a final version. In fact, there can be mistakes in a will, or perhaps it was fraudulently presented. Likewise, a problem could be that the will was drafted during a time when the deceased was unable to make sound decisions.

In some cases, a bank or institution may renounce requirements that an estate must be probated before the money in an account is issued given that the beneficiary is the principal heir-at-law (legal person entitled to the real property of the deceased). If there are other potential heirs-at-law, they must sign waivers and authorizations to pay the beneficiary, and conform to repay the bank should there be any claims. However, that is the exception instead of the rule for institutions that operate nationally.

  1. Probate is necessary when an estate’s assets are named exclusively to the decedent. In some cases where the decedent’s owned property expressed no other names of beneficiaries, then the estate must undergo probate to transfer the property to any beneficiaries.
  1. Probate is necessary when there are no named beneficiaries, or the beneficiaries predeceased the decedent. This instance may apply to any savings or retirement account such as 401(k) accounts or IRA or life insurance policies that pay out beneficiaries. In case beneficiaries are unnamed or predeceased, probate is necessary to transfer titles or funds to the beneficiaries’ names.
  1. Probate is necessary when a decedent owns the property in joint tenancy. This is also known as Tenant-in-Common. In this case, the decedent owns the property with others. Thus, probate is necessary to remove the deceased’s name and transfer their share of the property to the appropriate beneficiaries.

Understanding the process of probate clarifies a will and safeguards an estate from predicaments to the potential beneficiaries of inheritance. Using probate can be an effective and important process, but some concerns of a will can be settled without involving a probate court. It would be wiser to consult with a lawyer who specializes in probate cases.

Author Bio: Kiren Manning is a estate law writer who enjoys writing about subject in relation to real estate and law. He has written for a few blogs in the past, and enjoys sharing his knowledge with those who enjoy reading. In his spare time he enjoys spending quality time with those he loves.

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