It is not easy to cope up with the loss of a family member. This grief doubles and becomes more difficult when you are given the responsibility of sorting through, distributing, and disposing of the earthly possessions of the decedent. It means you are the designated estate executor. Before even starting with the process of distributing the assets among the beneficiaries, it will be necessary for you to consider whether Probate is necessary. And yes, you even need to find out whether the deceased has used estate plans for avoiding the process.
If the estate includes a house, then there are no ways you can skip the process. Apart from this, state laws, rules, and disagreed beneficiaries lobbying lawsuits against you might require going through the Probate.
Take all these things into consideration. Ponder on the different scenarios where the process is necessary. Also think about the ones where you can skip it.
Starting with the Basics: What is Probate?
It is the formal legal procedures that offer recognition to the deceased’s will. It also nominates a personal representative or an executor for administering the entire estate. The executor is responsible for distributing the estate assets among the beneficiaries and the heirs according to the last wishes of the deceased.
Carrying out this process becomes necessary when the estate features assets that should be distributed or settled legally. There is not always this requirement of going through the process, but it becomes mandatory if there are real estate and real property involved.
What You Need to Know?
It is a misconception among people that the process takes place only when there are no beneficiaries, no will, or no beneficiaries contesting the existing will. There are others who are of the view that every estate needs Probate, and this goes special in the presence of a will.
Nevertheless, the reality completely depends on the laws of the state and the steps the deceased took to avoid the settlement before passing away. Suppose there’s an estate that needs settlement. Then it is out of law to handle the assets left behind.
The executors nominated for administering an estate might even face fines if they do not file a petition for the Probate within the needed deadline. It is generally between 10 and 90 days from the expiry of the individual.
This is why it is important to file the estate will with the court instantly. Even when, as an executor, you think that the estate will not have to go through the probate proceedings.
Reasons Why Probate is Crucial
There are a number of reasons why Probate is necessary. We will have a look at them below:
- First of all, in the absence of a will, it becomes important to go for the process of determining the heirs and beneficiaries. It is important for distributing the title to the property and the assets of the decedent.
- What if there is a valid will available? It is necessary to go through Probate for distributing the estate assets among the named heirs or beneficiaries properly.
- The process becomes necessary in times when there are issues with the existing will. The most common issues with the will are: there are mistakes in it; submitted will not be considered as the final version, and the will was executed fraudulently. Other instances are where the process might be necessary are:
- 1. when the will is crafted at a time the deceased did not have a stable and sound mind
- 2. various other challenges to the will’s integrity.
- Probate is vital when the assets of an estate are completely in the name of the decedent. In the majority of the cases, the decedent owned property without other names added. Then it is necessary for the estate to go through the process for transferring it into the names of the heirs or the beneficiaries.
- What if there is no mention of heirs? Or the beneficiaries have died even before the decedent? Probate becomes necessary. The situation generally applies to savings or retirement accounts like 401K or IRA or other life insurance covers that can pay out the heirs. In these cases, transferring the titles and funds into the names of the beneficiaries is vital.
It is a wise decision to consult an attorney specializing in estate planning and probate law for reviewing all the different options available in the state where you reside. You should remember that only a living trust can help you in avoiding the process.