An average person doesn’t know a lot about probate. If you’ve heard anything, you would probably prefer to avoid it – most people say that it’s expensive and time-consuming. And it’s true that it can be – some cases last for 3 years (or even longer) and it may get hard to get on later, even when there are companies like Probate Advance that can help you financially while the probate process is ongoing. However, sometimes you may not have a choice. If the deceased hadn’t taken any steps to avoid probate during the preparations of the will, it may be hard to avoid it.
In short, probate is the formal legal process of which aim is to appoint an executor or another personal representative who will be responsible for distributing assets to the intended beneficiaries and administering the estate. If the situation is not 100% clear and you try to avoid probate, you may end up with even more legal issues to deal with.
So when is probate necessary?
If there’s no will
This one is probably obvious. If a person dies and doesn’t leave any will behind, someone has to decide for them. When there’s no executor appointed to distribute the assets, according to the probate law, it will all fall on the probate court.
Some smaller estates, however, don’t have to go through the proper probate process – it’s too long and too expensive for the courts to carry them out every time. But the rules vary across the states so it’s always a good idea to consult with a professional first.
If there’s a problem with the will
Unfortunately, a lot of people don’t write their will as they should. The problems may be many – no notarization, no affidavit, no updates; sometimes there are also multiple wills or someone tries contesting it, people may doubt if the will was written voluntarily or by a person of sound mind. There are times when there are even doubts as to whether it was actually written by a deceased. That’s why it’s so important to not only have a valid will but also to work with a professional who will make sure that all necessary steps to avoid probate are taken.
If there are no beneficiaries
When a single or widowed, childless person dies or their beneficiaries had died before them, the probate court has to decide what happens to their estate, even if there was a will left behind, simply to verify. And if there isn’t any will, the court will try to locate even the most distant relatives or it will be appropriated by the state after all debts have been paid off.
If there’s a valid will, but help is needed
Sometimes even if there is a proper will and the deceased had taken care of all necessary formalities, there may still be a need for probate if there are any debts and creditors to be paid out before the assets can be distributed. Or the court will simply have to transfer the ownership of the estate to the beneficiary.
If the deceased owned a property in joint tenancy
If a decedent had property, but the ownership was shared with other people, the probate court will need to transfer the decedent’s share of the property to the designated beneficiary.
When probate is not necessary?
As it was already mentioned before, estates that are small in size and value can avoid probate in some states if the deceased had taken appropriate steps. What’s more, you can transfer the ownership of the estate with the living trust instead of probate – the deceased manage it by themselves while they’re still alive and they appoint their successor. Also, there’s no need for probate if two spouses own the estate in joint tenancy – the surviving side simply gets the share of the deceased. Lastly, some states allow for something called a beneficiary deed; for example, in the case of both parents dying, the estate can go directly to children.
Whether you decide to go through probate or not should be a well-thought decision. The best option is to consult with a professional who will get to know your specific case and will be able to tell what’s your best option.