Is Probate Necessary?

Whether probate is necessary depends on the decedent's property, how it was held, the law of the state in which the decedent died, and the laws of any state where the decedent had property. If there was no will, probate is necessary to determine the beneficiaries and distribute the decedent's assets and title to the property. Call the toll-free number above if you need to speak with an attorney about whether or not probate is necessary in your case.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Whether probate is necessary depends on what property the decedent owned and how it was held, and on the law of state in which the decedent died and the laws of any states where the decedent held property. Non-probate assets can be passed directly to descendants, but they can get caught up in the legal process if you aren’t careful.

In general, the probate process clarifies issues in a will and resolves any challenges to the distribution of funds of an estate. The type of probate needed depends on the size of an estate. Generally, it is necessary to go through probate or, in the case of smaller estates a less formal procedure under the general supervision of the probate court, before the deceased’s property can be legally distributed. Without probate of a will, complicated legal issues can arise.

Is Probate Necessary with a Will?

The first major issue to be resolved through the probate estate is the clarification of title for the real estate and other property of an estate. Even if there was a will, all of the property owned by the deceased person at the time of death is part of the estate and is subject to probate. This includes bank accounts, CD accounts, pension accounts, and the deceased’s personal property, like jewelry, furniture, and artwork.

Probate not only distributes property, but also results in a legal transfer of title to that property. For example, if a family member, such as an aunt, passes away and leaves her home to a nephew, the probate court can order the issuance of a title put in the nephew’s name, who can then legally manage the property. Until the will is probated, that title is potentially clouded as it has not been legally transferred. The larger estates are, the more complicated this can get if not done properly.

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What Are the Most Common Reasons for Probate?

If there was no will to distribute estate assets, probate is necessary to determine the beneficiaries and to distribute the decedent’s assets and title to property.

If a valid will exists, it must still go through probate. A probate lawyer may have an easier time if an estate lawyer was involved in setting up the will. Many questions will be answered beforehand, and you can avoid murky situations with family members who don’t agree with what’s written. Some issues with wills may include:

In some cases, an institution or bank may waive the probate requirement if the beneficiary is the principal heir-at-law (person legally entitled to the real property of the deceased). All other possible heirs-at-law will have to sign waivers and authorizations to pay the money to the beneficiary, Then they have to agree to repay the bank should any claims be made. But that’s the exception rather than the rule for nationally-operating institutions. The costs of administration rises if claims are made.

A probate lawyer will also get involved when an estate’s assets are solely in the deceased’s name. In most cases, if the deceased owned property that had no other names attached, an estate must go through probate in order to transfer the property into the name(s) of any beneficiaries. If title was held with a partner, child, or other party, the property will be reassigned based on title. In community property states, a married couple is assumed to own the property together, and ownership would automatically transfer to the survivor.

When there are no beneficiaries named or they have predeceased the decedent, probate is necessary. This situation applies to any retirement or savings accounts such as IRA or 401(k) investment accounts or life insurance policies that would pay out to beneficiaries. If beneficiaries are not named or are all predeceased, state laws will be followed to determine who has the right to the money. A probate attorney may help to research and communicate with potential heirs.

The process of probate clarifies a will and protects an estate from challenges to the specified beneficiaries. Probate court proceedings are often depicted as lengthy and full of conflict, but most are must simpler than you might expect.

Although using probate for a will is an effective, and sometimes necessary process, some matters of a will can be handled without involving a probate court. The strategies available depend on the nature and shared ownership of the property in the estate.

It’s in your best interest to consult with an estate planning law firm that specializes in probate or estate planning law to review all of your options available under the probate laws in your state.

The way to avoid probate is through the use of a living trust. Click here for more information on trusts and how to use them.

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