When Is Probate Necessary?

Posted by smith clea on September 1st, 2022

Probate can be necessary in the event of a person’s death, especially if the decedent did not have a will.

When someone dies without making out a will, it means that they died intestate.

This means without any legal direction on how his or her property should be distributed after death.

If this happens, courts may have to step in and appoint an administrator (also called an executor) to handle the deceased person’s property until it is finally distributed among the rightful recipients.

The Basic Rules Of Probate

When someone dies, their property must go through probate.

This is a legal process that transfers the deceased person's assets to their heirs.

To start probate, the executor of the estate must file a petition with the court.

The court will then issue a decree that appoints the executor and gives them the authority to handle the deceased person's affairs.

A probate process can be lengthy and expensive process, so it is not always necessary.

There are certain things you should do if you want to avoid probate.

You could create trust, for example, which would allow you to choose someone else as the recipient of your assets.

You could also have your attorney draw up an estate plan that specifies who should inherit your property after your death without having to go through probate at all.

How Can I Avoid Probate?

If you want to avoid probate, there are a few things you can do.

First, you can create a revocable living trust and name yourself as the trustee.

This means that you'll still have control over your assets during your lifetime.

But they'll go directly to your beneficiaries after you die.

You can also make sure that all your assets are jointly owned with someone else so that they automatically pass to the other owner when you die.

Finally, you can put in place an advance health care directive instructing what should happen if you become incapacitated or unable to speak for yourself.

Wills Vs. Living Trusts

A will is a document that provides instructions for the distribution of your assets after you die.

A living trust, on the other hand, is a legal entity that can hold and manage the property on your behalf during your lifetime and after your death.

It avoids the time-consuming, expensive, and public process of probate that is required when someone dies without a will in place.

Living trusts are good for people who want to avoid court proceedings when they pass away or are incapacitated in some way.

Living trusts typically save an estate about 40% in attorney's fees and cost about 1% of their total value to set up, compared with probates which average around 3%.

Handling An Estate Without A Will Or Trust

If the deceased died without a will or trust in place, their estate will still need to go through probate.

This is because the court needs to appoint an executor to handle the estate's finances and distribute the assets according to state law.

If the deceased had any debts, the executor will also be responsible for paying them off.

A probate process can be a long and complicated process.

So it's important to have an experienced attorney on your side.

About The Author

Clea Smith is a USA-based author on Legal issues related to estate planning, will & trust, business law, and elder law. Clea Smith does her best writing on these topics that help users to find the best solutions to their FAQ on estate planning attorney, probate, living trust vs will, and more about legal family issues.