The short answer is no! There’s a common misconception that every property and will has to go through a probate process to claim ownership. But, that’s not completely true. Depending on the state, jurisdiction, and status of the estate, probate can be deemed unnecessary.
This guide, in addition to informing you about which estates come under the probate regulations and which don’t, will let you know about the application process and requirements. But first, let us know what probate is.
What Is Probate?
Probate is simply a procedure that gives legality to the assets that are being passed onto the beneficiaries. However, probate and will aren’t coupled together. If there already is a will, the probate process starts from there. But, in case there isn’t one, beneficiaries are chosen depending on the jurisdiction and state laws to facilitate the probate procedure.
The probate process usually validates the claim of the beneficiary by reviewing the will and going through the official procedures regarding it. If no complaints are filed against the will or claim, the ownership is handed over to the beneficiary. In case a complaint has been filed, the process may get stretched.
Where Is Probate Applicable?
Although the succession of estate rules varies depending on the state, typically most assets are required to go through the probate process. Except for some special cases that have been discussed after, any will that is:
- In writing
- Signed by a mentally capable testator
- Signed by enough witnesses
Is acceptable and subject to probate. The court generally verifies the legitimacy of the wills, the challenges, and the distribution of intestate property. In the case of estates with a will, the executor initiates the will of the testator (deceased person).
Although states can have different rules, the court gives the executor power to act as a representative of the testator. The executor may be a family member but, as the process is arduous, it’s better to consult a lawyer to avoid going through it alone.
Moreover, if there is a challenge against the petition, you may not be able to comprehend and fight it without a probate lawyer in Orange county. In the case of an intestate estate or estates without a will, the court appoints an administrator to overview the valuation of the properties and determine the distribution among surviving legal heirs. The administrator represents the deceased in this regard.
The responsibilities of an executor are:
- Filing the final income tax returns
- Pay pending taxes
- Calculating the value of the assets
- Pay debts related to the property
If the assets are insolvent, meaning that the value of the debts outweighs the value of the asset, then the executor may choose not to probate. By not going through probate, they officially disregard their responsibilities towards the estate.
Where Isn’t Probate Applicable?
We already discussed an instance where probate isn’t necessary. That is when the executor isn’t interested in getting ownership of the estate. However, several other instances are there where you don’t need to go through the process to claim your legitimacy.
Small Estates
In most states, estates that are below a certain size, aren’t required to go through the full probate process. A minimal version of the process is available for small estate wills where the requirements are simpler and court supervision is minimal.
Moreover, some states also let you bypass the whole probate process. If your state allows beneficiaries to claim assets via an affidavit from the court, you can avoid probate.
Joint Assets
A fairly common practice is to own estates jointly with family members, friends, or others with the rights of survivorship. In these cases, the surviving owner inherits the assets automatically without going through any probate process.
However, if both owners pass away at the same time or the surviving member doesn’t add another partner before their passing, probate becomes necessary. Consulting a real estate lawyer in Grande Prairie is the best bet if you’re confused about the probate requirements.
Revocable Living Trust
A living trust or “inter vivos trust” is a legal document that places your assets to your benefit as long as you’re alive and transfers the estates directly to the beneficiaries upon your demise. In the case of living trust assets, probate isn’t required.
However, if you create a “pour-over will” to safeguard any estate that may not be included in the trust, it’ll directly be transferred to the trust, but a probate will be required.
Estates With Named Beneficiaries
Policies, savings, or any other assets that already have a named beneficiary attached to them aren’t subjected to the probate process. Although the executor needs to notify the organizations with proof of death, involving the court isn’t necessary to claim the estate.
Step-By-Step Probate Process
Hopefully, you’ve already understood if you’re required to go through the probate process or not. If you do, here is a brief step-by-step introduction to the probate process.
1. Filing
Source: Pexels
Once a will has been located, the executor is required to file a petition with the probate court requesting that the will be probated. All the heirs and beneficiaries must be notified about the petition through direct contact or newspaper classifieds. If there are no formal challenges against the petition within a set period of time, the process is escalated further.
If there is no will, the administrator requests the court to grant them the role of executors. The notice to all legal heirs is also applicable in this case.
2. Identification of Assets and Debts
The executor is asked to assess and disclose the valuation of the estate to the court. Following this, the court lets the executor take legal control of the assets. The creditors are also notified about the petition.
Creditors are required to file their claim within a timeframe to be acknowledged by the court. The executor must disclose these debts to the court.
3. Payment of Debts
The executor is responsible for paying all the debts and bills against the estate to the respective parties. If not enough cash is available, the executor can sell portions of the asset to pay the debts. Any taxes that are due after the final income tax filing shall also be paid by the executor.
4. Asset Distribution
After the debts have been paid, the executor distributes the assets to the beneficiaries according to the will or intestacy laws of the state. However, additional formal ownership transfers are required for real estate and vehicles.
The Bottom Line
We’ve discussed how not every estate is required to go through the probate process to be inherited. But, if you’re required to do so, consulting a probate lawyer is the best course of action as the process is lengthy and complex.
Moreover, depending on your state, the rules may change. Follow the local guidelines before filing the petition to the court.
