| Will I have to go to probate court? When is | | | | - Mental Incompetence - the deceased was not |
| probate required? These are common questions | | | | mentally competent when he or she made up the |
| people have when someone passes away. | | | | will so their decisions are questioned. |
| Probate laws vary from state to state so it is | | | | - Undue Influence - the deceased was under |
| always a good idea to consult with probate | | | | duress when he or she wrote up the will. |
| attorneys about whether or not you need to | | | | 2. Probate is required if the deceased didn't have |
| attend probate court. But here is some basic | | | | a Last Will and Testament. If there is no will, then |
| information to help you determine if probate is | | | | there has to be a legal and equitable probate |
| required. | | | | court process for distributing the deceased assets |
| What is Probate? | | | | and for transferring the title of probate property. |
| In short, probate is the transfer of person's | | | | The only way to do this is with probate. |
| assets after they die. Probate is the legal process | | | | 3. Probate is required if the assets were owned |
| of distributing the assets and estate of a | | | | solely by the deceased. If there were no other |
| deceased person. This includes resolving all issues | | | | owners or designates of the property or asset, |
| of probate property like taxes, insurance, title, | | | | then in most cases the property will have to be |
| and paying creditors for any outstanding money | | | | probated to get it out of the deceased's name |
| owed by the deceased. Probate is usually applied | | | | and into the beneficiary's name. |
| to large estates or significant sums of money. | | | | 4. Probate is required if the assets were owned |
| Assets eligible for probate varies from state to | | | | as a Tenant in Common or Joint Tenancy. What |
| state, country to country. You have to check for | | | | this means if the deceased owned property |
| specific probate laws or with a probate lawyer in | | | | jointly with another person, such as in the case of |
| your region to determine if the deceased's assets | | | | a common law marriage, then probate is required |
| were significant enough to warrant a probate. | | | | to ensure that the deceased's share of the |
| What is Probate Court? | | | | property is properly distributed to legal heirs. |
| Probate court is a surrogate court that interprets | | | | 5. Probate is required if there are no designated |
| the will and appoints the executor. Probate judges | | | | beneficiaries or if all of the beneficiaries have |
| the validity of claims made against the estate | | | | predeceased the decedent. In the case of life |
| through heirs and beneficiaries as well as taxes | | | | insurance policies, retirement funds or certain |
| and debts. Further reading about probate laws is | | | | savings accounts, beneficiaries are usually named. |
| available at ObituariesHelp.org | | | | But if all the named beneficiaries have passed |
| When is Probate Required? | | | | away or if the deceased didn't name beneficiaries, |
| There really are only five reasons why you'd | | | | then probate is required to transfer the money or |
| have to go to probate court to either make your | | | | title to the beneficiaries. |
| claim on the deceased's assets or to prove that | | | | One thing to remember about knowing when is |
| you are a legal beneficiary. If any one of the | | | | probate required? Probate is required if there are |
| following applies to you or to the deceased, then | | | | significant assets to be distributed or creditors to |
| you might want to consult a probate attorney. | | | | be paid outside of what is legally stated in the will |
| 1. Probate court is necessary if the will is deemed | | | | or if there is no will at all. If any of these five |
| invalid for one of these reasons: | | | | reasons apply to you or your situation, you can |
| - Improper Execution - it wasn't written clearly or | | | | expect that probate is required and you'll have to |
| it was not a legal will. | | | | appear in probate court. |