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Do we have to go through probate if there is a will?
Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased's property can be legally distributed.
Even if a person dies with a Will (which is known as dying "testate"), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that
(1) There was a later Will (which, if valid, would replace the older Will);
(2) The Will was made at a time the deceased was not mentally competent to make a Will, or
(3) the Will was the result of fraud, mistake, or "undue influence";
(4) The Will was not properly "executed" (signed);
(5) The so-called Will is actually a forgery;
(6) For some other reason (such as a pre-existing contract) the Will is not fully valid; or
(7) There are other claims against the deceased's estate that impact what the beneficiaries under the Will would receive.
For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate had gone through probate so "clear title" could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the deceased's property before the Will is "admitted to probate" and/or someone is lawfully appointed to act for the estate.
All the property owned by the deceased at the time of death is included in the estate and is subject to probate. This includes bank accounts, CD accounts, and pension accounts. It also includes the deceased’s personal property, like jewelry, furniture, and artwork.
In some cases an institution may waive the requirement that an estate be probated before money in an account is released IF the beneficiary is the principal heir at law, all other possible heirs at law have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to indemnify the bank should any claims be made. But that's the exception, rather than the rule for nationally operating institutions. |
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Probate Law Attorneys
Probate Law Forum |
Do we have to go through probate if there is a will?
How long does probate take and how much does it cost?
Where is probate handled?
What is probate?
What are self-probating wills?
Is Probate Necessary?
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