Probate definitely appears to be a complex and daunting affair for many people out there. In fact, most of these people would give anything to avoid going for a probate process. However, what most people do not understand is that it is simply a legal process. It determines the formal distribution of a deceased’s assets among his or her legal beneficiaries. Now, the question arises that is it necessary for all estates to go through the said process?
Well, in case of estates or properties, the process depends upon different factors. It depends upon the type of property the deceased owned and how it was held. Also, it depends upon the law of the state in which the owner died and held property as well. Let us walk through this in detail.
Is it Possible to Skip Probate?
This is a fact that many people do not want to go through the process. Well, probate is not necessary for all wills or properties. However, if the deceased did not plan to avoid the process, beneficiaries may have to struggle for the will. But there is an exception to this as well. As per the Florida law, a family can own a property after the demise of the owner. The need remains for them to continue paying the taxes and are not selling it.
Cases When Probate is Necessary
Given below are the situations when probate is necessary:
When there is a need to carry out a valid will
Yes, this is a fact. An estate may need a probate when they need to distribute the assets of an estate as per a valid will. In some situations, the decedent may possess some debts as well as creditors. These need to be paid before the beneficiaries take ownership of the said assets. When the decedent owns the sole ownership of the said assets, the process simply transfers the ownership to the beneficiary.
In the Absence of Beneficiaries
When the descendant has no surviving kids or living spouse, the probate decides the ownership. If there is a will, the process becomes a little easy. However, if there is no will, then the task lies on to the court. The process will locate the distant relatives who are not mentioned in the will. Also, if no relatives are present, the assets will be distributed as found appropriate.
When No Will is Present
When there is no will, your estate will surely end up in a probate as per intestate succession laws. These succession laws may vary from one state to another. When there is no will to mention the names of the successors, the courts may decide the matter. However, in case of small estates, probate may not be always required. Since the process is complex, many states have designed laws to remove probate for small or low-valued estates. However, it is advisable to take advice from an experienced attorney to help you in the process.
When Existing Will has Issues
Sometimes a will may not be correct. These issues can trigger a probate process for the said will. These issues may be simple. Sometimes, the decedent may simply forget to notarize his or her will. Sometimes, he or she may forget to attach a self proving affidavit for the will. Moreover, the decedent may not have updated the new property in his will. In the worse case, there may be multiple wills. This implies that beneficiaries may have to fight among themselves for the correct will. This will lead to the probate process.
When The Decedent Owns Property in Joint Tenancy
Probate becomes necessary when the decedent owned joint property with other people. Probate will transfer the share of the decedent to his or her beneficiaries. However, these cases may get complex and only an attorney can help you get through these. Also, different states have diverse probate laws concerning these situations.
Estates may be of varying sizes and need proper planning if the owner wants to avoid the probate process. These processes may be avoided when the estate planning is done in an effective way. A living trust may be the best way to avoid the process. It functions similar to a will. It enables the owner to name himself or herself as a trustee while he or she is still living. Also, in other situations, an attorney can assist in getting through the said process or avoiding the complexities. Thus, when you face such a case, ask around for a reputable attorney to help you out.