by Jodi Summers
Here’s an interesting factoid about real estate in the United States: Property must at all times be transferable. And having same that, once your body 6-feet under in your eternal plot of real estate, any asset transfer that may have required your signature must go through probate.* Probate is the legal process validates the deceased’s will. Essentially, probate is the legal process of distributing and retitling the assets as set forth in your will.
Allow us to share with you the answers to some basic questions about probate.
A: Probate is the legal process of distributing the assets and estate of a deceased person. This may include any and all issues that come with probate property such as assignment of title, taxes, insurance, loans as well as debts and creditors. Probate is generally for the ones that die with the most toys, as it is usually applied to large estates or significant sums of money. If you own real estate in the Los Angeles area, in addition to other assets, you most likely qualify. Please consult with your attorney for details.
The Surrogate’s Court handles all probate and estate proceedings. Probate court interprets the will and appoints the executor. Probate weighs any claims made against the estate through heirs and beneficiaries as well as taxes and debts.
When is Probate Required?
Probate court is needed to either make your claim on the deceased’s assets or to prove that you are a legal beneficiary. Experts note 5 main reasons for probate court….
1. Probate court becomes necessary if the will is declared invalid for reasons such as:
L Mental Incompetence – The deceased was not mentally competent when they made up the will so their decisions are questioned. (This is a favorite among jealous relatives.)
L Undue Influence – The deceased was under duress when they wrote up/revised the will.
2. Probate is required if the deceased didn’t have a Last Will and Testament. If there is no will, the law requires probate court for the legal and equitable distribution of the deceased’s assets and for transferring the title of probate property. Hard to avoid probate without a will.
3. Probate is required if the assets were owned solely by the deceased. If no one else is on title, and there are no recorded designates for the property or asset, then, most likely, the property will have to be probated to get it out of the deceased’s name and into the beneficiary’s name.
Figure if your real estate isn’t wrapped in a trust, it will most likely have to go to probate…
4. Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. (Wait! But 3. said…) If the deceased owned property jointly with another person, like in 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 died first. When it comes to life insurance policies, retirement funds or certain savings accounts, beneficiaries are usually named. But these documents don’t get updated regularly. 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.
Probate is required if you are lucky enough to have significant assets to be distributed, and/or have creditors to be paid outside of what is legally stated in the will. It is also needed if there is no will at all.
If any of this article applies to you or to the deceased, then you might want to consult a probate attorney.
May you inherit richly.
* Probate may be avoided if you’ve got it wrapped up in the right type of trust. Please talk to you attorney for details.
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