Will I have to go to probate court? When is probate required? These are common questions people have when someone passes away. Probate laws vary from state to state so it is always a good idea to consult with probate attorneys about whether or not you need to attend probate court. But here is some basic information to help you determine if probate is required.
What is Probate?
In short, probate is the transfer of person's assets after they die. Probate is the legal process of distributing the assets and estate of a deceased person. This includes resolving all issues of probate property like taxes, insurance, title, and paying creditors for any outstanding money owed by the deceased. Probate is usually applied to large estates or significant sums of money. Assets eligible for probate varies from state to state, country to country. You have to check for specific probate laws or with a probate lawyer in your region to determine if the deceased's assets were significant enough to warrant a probate.
What is Probate Court?
Probate court is a surrogate court that interprets the will and appoints the executor. Probate judges the validity of claims made against the estate through heirs and beneficiaries as well as taxes and debts. Further reading about probate laws is available at ObituariesHelp.org
When is Probate Required?
There really are only five reasons why you'd have to go to probate court to either make your claim on the deceased's assets or to prove that you are a legal beneficiary. If any one of the following applies to you or to the deceased, then you might want to consult a probate attorney.
1. Probate court is necessary if the will is deemed invalid for one of these reasons:
- Improper Execution - it wasn't written clearly or it was not a legal will.
- Mental Incompetence - the deceased was not mentally competent when he or she made up the will so their decisions are questioned.
- Undue Influence - the deceased was under duress when he or she wrote up the will.
2. Probate is required if the deceased didn't have a Last Will and Testament. If there is no will, then there has to be a legal and equitable probate court process for distributing the deceased assets and for transferring the title of probate property. The only way to do this is with probate.
3. Probate is required if the assets were owned solely by the deceased. If there were no other owners or designates of the property or asset, then in most cases the property will have to be probated to get it out of the deceased's name and into the beneficiary's name.
4. Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. What this means if the deceased owned property jointly with another person, such as in the case of a common law marriage, then probate is required to ensure that the deceased's share of the property is properly distributed to legal heirs.
5. Probate is required if there are no designated beneficiaries or if all of the beneficiaries have predeceased the decedent. In the case of life insurance policies, retirement funds or certain savings accounts, beneficiaries are usually named. But if all the named beneficiaries have passed away or if the deceased didn't name beneficiaries, then probate is required to transfer the money or title to the beneficiaries.
One thing to remember about knowing when is probate required? Probate is required if there are significant assets to be distributed or creditors to be paid outside of what is legally stated in the will or if there is no will at all. If any of these five reasons apply to you or your situation, you can expect that probate is required and you'll have to appear in probate court.
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